WashPost's Ezra Klein Laments a 'Radical and Discredited' Constitutional Theory Could Doom ObamaCare

I will give this to Ezra Klein: unlike other liberals in the media -- Michael Tomasky and James Fallows come to mind -- the Washington Post economic and domestic policy columnist is decidedly less histrionic about the Court likely striking down as unconstitutional the ObamaCare "individual mandate" on Thursday. But all the same, Klein is seeking to dismiss the intellectual and legal credibility of the Court's ruling should a majority rule on Thursday that the individual mandate violates the Constitution's limits on federal power.

In a June 26 column, Klein sought to explain how "a radical and discredited reading of the commerce clause" came to be popular with American voters and palatable to a majority of the justices on the Supreme Court, all thanks to conservatives erecting a "permission structure" that overrode previous conservative backing for the idea of a health-care mandate.

A "permission structure" is a platform that relies "heavily on 'third-party authentication' -- endorsements from respected figures or institutions that the targeted voters admired," Klein explained. In this case, the "targeted voters" are the four conservatives on the court plus moderate-conservative swing voter Justice Anthony Kennedy:

Over the past two years, the Republican Party has slowly been building a permission structure for the five Republicans on the Supreme Court to feel comfortable doing something nobody thought they could do: Violate the existing understanding of the commerce clause and, in perhaps the most significant moment of judicial activism since the New Deal, overturn either all or part of the Affordable Care Act.

Of course, it's not "violat[ing]" existing commerce clause case law to say that the ObamaCare individual mandate goes beyond what existing precedent has allowed. That's precisely the point of numerous conservative amicus curiae [friend-of-the-court] briefs that were filed in the HHS v. Florida case: the commerce clause exists to permit Congress to regulate existing commerce, not to compel private parties to engage in an act of commerce under penalty of law.

Another conservative/libertarian amicus brief, filed by the Institute for Justice (IJ), held forth that ObamaCare violated fundamental principles of American contract law. Contracts, IJ attorneys note, cannot be legally enforceable if they are entered under compulsion, which is precisely what ObamaCare's individual mandate would engender (emphasis mine):

The Founding generation that drafted and ratified the Constitution never meant for the federal government to possess the power to coerce individuals to engage in commercial transactions against their will. Coercing commercial transactions is antithetical to the foundational principle of mutual assent that permeated the common law of contracts at the time of the founding and continues to do so today. The Founding generation recognized that this principle was critical to protecting individual liberty. It would never have given, and in fact did not give, Congress, through the guise of the Commerce Clause, the power to gut the foundation upon which the entirety of contract law rests.

Equally important, granting Congress the power to eviscerate the doctrine of mutual assent cannot be a “proper” exercise of congressional power within the meaning of the Necessary and Proper Clause. As Chief Justice Marshall declared in McCulloch v. Maryland, for a law to be necessary and proper, the “end [must] be legitimate” and it must “consist with the letter and spirit of the constitution . . . .” 17 U.S. (4 Wheat.) 316, 421 (1819). But it is not consistent with the letter and spirit of the Constitution for Congress to compel individuals to engage in commerce and thereby to eviscerate the concept of mutuality of assent. Construing the enumerated powers of Congress as including a power to coerce individuals to engage in commerce would destroy the longstanding principle of mutual assent.

But rather than address the merits of the legal theory promulgated by conservatives in their briefs to the Court, Klein fixated on how some otherwise conservative legal jurists had previously weighed in in in favor of ObamaCare, with appeals court judge Jeff Sutton upholding the mandate and fellow appeals court judge Brett Kavanaugh ruling the challenge "not justiciable."

Both judges are "top choices for Supreme Court picks on the Republican side," Klein noted, quoting former Justice Kennedy clerk Orin Kerr of George Washington University's law school. Adding to that the factoid that "[a] poll of top constitutional law scholars found that 19 of 21 top constitutional law scholars found that 19 of 21 thought the mandate was unconstitutional, but only eight were confident that the Supreme Court would uphold it," Klein's point seems to be that, objectively speaking, ObamaCare should be upheld, but conservatives have done a great job lobbying the Court to ignore sound legal theory in favor of a political outcome.

Of course, Klein conveniently left unmentioned that there was a Clinton appointee in the 11th Circuit Court's majority opinion, the same case that the Obama administration appealed to the Supreme Court and which could be affirmed by the Court on Thursday.

From the August 12, 2011 Politico (emphasis mine):

The 2-1 ruling marks the first time a judge appointed by a Democrat has voted to strike down the mandate. Judge Frank Hull, who was nominated by former President Bill Clinton, joined Chief Judge Joel Dubina, who was appointed by George H.W. Bush, to strike down the mandate.

[...]

The majority of the panel said they couldn’t uphold the mandate because there would be no limit to Congress’s powers if they did. Opponents of the law have frequently argued that if Congress can require people to buy insurance, they can force people to do anything else, such as buy broccoli or a gym membership for their health benefits. Vinson cited this broccoli argument in his sweeping ruling striking down the entire law.

“We have not found any generally applicable, judicially enforceable limiting principle that would permit us to uphold the mandate without obliterating the boundaries inherent in the system of enumerated congressional powers,” Dubina and Hull wrote in an expansive, 200-page ruling. “‘Uniqueness’ is not a constitutional principle in any antecedent Supreme Court decision.”

"If the Supreme Court rules against the mandate, it will no longer be out on a ledge. It will be in lock step with the entire Republican Party, many polls, a number of judges, the impression the public has gotten from the media coverage and the outcome of the oral arguments," Klein lamented.

To Klein and his buddies in the media, they're all but certain the Court will not rule in their favor. The fight is now over the narrative, the spin to discredit the ruling and dismiss the sound constitutional legal theory, originalism, that will underpin it.