Larry Solum on the Individual Mandate Decision

Georgetown law professor Larry Solum has an excellent post on the mandate decision, much of which I agree with:

Had the Court struck down the mandate, it would have clearly represented a tectonic shift in American constitutional law. In the extraordinarily unlikely event that there had been a majority opinion authored by one of the four justices fromt he left wing of the Court, the decision would have cemented (at least for a time) the most common academic understanding of Congress’s power under Article One of the Constitution. Roughly, that understanding is that Congress has plenary legislative power, limited only by the carve outs created by the Supreme Court’s decisions in Lopez and Morrison….

Most of the academic community was committed to some version of the prevailing gestalt view of federal power. Some believed in unlimited and plenary congressional power. Others believed that the power was virtually unlimited, subject to a minor exception (details varied) for Lopez and Morrison. If you were committed to the gestalt as your mental picture of the constitutional doctrine, then the challenge to the individual mandate was radically implausible and might even be characterized as frivolous.

Nonetheless, the lawsuits against the individual mandate did not meet with unanimous rejection by the federal courts. Instead, a number of federal judges decided that the individual mandate was unconstitutional….

At this stage of the game, the prevailing view was that the Court would almost certainly uphold the mandate if it reached the merits. Many commentators predicted an 8-1 decision, with Justice Thomas dissenting on originalist grounds. From the point of view of the prevailing gestalt, Thomas was simply an outlier, because he did not accept the New Deal Settlement and instead endorsed a pre-New-Deal vision of real and substantial limits on Congress’s enumerated powers….

If you continued to believe in the consensus academic gestalt concerning the Congress’s power, then the alternative explanation was that the Court was disregarding the law and deciding the case on purely political grounds.

But there is an alternative explanation. There is an alternative gestalt concerning the New Deal Settlement. For many years, some legal scholars had advanced an alternative reading of the key cases uphold New Deal legislation. On this alternative reading, the New Deal decisions were seen as representing the high water mark of federal power. Although the New Deal represented a massive expansion of the role of the federal government, it actually left a huge amount of legislative power to the states. On the alternative gestalt, the power of the federal government is limited to the enumerated powers in Section Eight of Article One, plus the New Deal additions. These are huge, but not plenary and unlimited.

Today, it became clear that four of the Supreme Court’s nine justices reject the academic consensus. As Justice Kennedy states in his dissent joined by Scalia, Thomas, and Alito:

“In our view, the entire Act before us is invalid in its entirety.”

The alternative gestalt is no longer an outlier, a theory endorsed by a few eccentric professors and one odd justice of the Supreme Court. And because Justice Roberts believes that the mandate is not a valid exercise of the commerce clause (but is valid if interpreted as a tax), he has left open the possibility that there is a fifth justice who endorses the alternative gestalt.

What Larry calls the academic “gestalt” view of federal power was never clearly endorsed by the Supreme Court, as he recognizes. But it certainly was the conventional wisdom among academics and some other pundits. Today, they got a wake-up call indicating that their view is far from universally accepted.

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