Much has been written of the relative strengths and weaknesses of Solicitor General Don Verrilli’s oral argument in defense of the Affordable Care Act before the Supreme Court last month. Many conservatives and liberals described Verrilli as “lost” and “confused” as he struggled to explain the “limiting principle” that would mark the outer bound of the power of Congress to regulate interstate commerce. A minority of voices pointed out that Verrilli did the best he could, making a few key points and never committing a serious mistake. I also commented at the time, arguing that Verrilli should have recognized that the oral argument was a political spectacle and left the technical legal reasoning for his briefs and using his time to push the simple, political narrative of the Affordable Care Act.
But a new article by Harvard Law School professor Einer Elhauge traces the legal history of “individual mandates” and notes that, since the founding of the country, Congress has always exercised the power to regulate interstate commerce through individual mandates. Indeed, Elhauge cites specific Constitutional framers who legislated an individual health insurance mandate. The history is striking and eviscerates the conservative argument that the individual mandate at the heart of the Affordable Care Act is “unprecedented” that Justice Kennedy suggested in his questioning:
Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification?
Reading Elhauge’s article — a definitive history that individual mandates are not unprecedented as a regulation of interstate commerce – and then remembering Justice Kennedy’s question and the conservative commentary around the case has left me asking: why has law school failed? More properly (and less sensationally), why has law school fostered such a narrow-minded mode of legal thinking infecting both Verrilli’s oral argument and Justice Kennedy’s decision-making?
Law school drills into the heads of young lawyers the primacy of “common law” — the legal framework that holds that law is determined by analogizing present disputes to earlier decisions. This is not to say that “common law” is an inappropriate legal framework. It forms the basis of the American legal system and relying on a history of prior decisions helps establish a predictable legal landscape. But law school rarely gives more than lip service to alternatives to case law. Speaking from personal experience, I fondly remember one course in my second year of law school for the sole reason that the class openly encouraged looking outside case law to interpret statutes.
Reviewing the transcript of the Supreme Court hearings, Verrilli focused on tangentially related dairy subsidy policies at the center of long-standing precedent. Justice Kennedy focused on “what our cases have allowed.” Both exalt the primacy of “common law” reasoning and fall within the single-minded focus on precedent that ignores the wealth of other relevant interpretive resources available to courts.
In his article, Elhauge describes Congressional statutes that directly mirror the individual mandate in the Affordable Care Act, and yet none of these are discussed in Verrilli’s oral argument solely because these statutes never made their way into a Supreme Court decision. This is a glaring failure of legal thinking fostered by the common law prejudice that has dominated the law school educational model since the mid-1800s. Statutes over 200 years old that were so uncontroversial that no one deemed their mandates worthy of Constitutional challenge arguably provide greater insight into the proper interpretation of Congressional power under the interstate commerce clause than those challenged in hard-fought Supreme Court cases growing out of the New Deal.
The folly of this failure to think “outside the box” is intensified by the fact that the entire right wing of the Supreme Court openly informs any legal observer willing to listen that “originalism” and “history” are as important to their reasoning as case law. While many liberals have a knee-jerk revulsion to Justice Scalia’s legal reasoning, in this instance expanding the legal worldview to respect Justice Scalia’s reliance on historical evidence would have improved the government’s narrative that the Affordable Care Act is not unprecedented, but rather another a law that fits within the long-accepted scope of the interstate commerce clause.