2012-06-28 17:36:06 - Law professors and other so-called constitutional law experts almost doomed historic health care reform by failing to see and acknowledge - until it was too late - that requiring all Americans to purchase health insurance raised constitutional issues which could be serious, suggests public interest law professor John Banzhaf, recalling a similar debacle and embarrassment regarding the role of law professors in unsuccessfully challenging the constitutionality of a law punishing universities for denying military recruiters access to campus.

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A recent Bloomberg poll of 21 so-called constitutional scholars found that 19 of them, after hearing and evaluating the health care arguments before the Supreme Court, believed the individual mandate is constitutional - apparently under the Commerce Clause or the Necessary and Proper Clause - even though only 8 think the Court will uphold it. www.bloomberg.com/news/2012-06-22/law-experts-say-health-measure ..

But, notes Banzhaf, under our legal system, constitutional law is simply what the Supreme Court says it is, not what most law professors pontificate it should be, based upon their rarefied academic analysis. This refusal to recognize reality - that an opinion regarding the constitutionality of a law is only a prediction about what the courts will finally decide and nothing more - can

have disastrous consequences far beyond their classrooms, scholarly blogs, and law review articles, says Banzhaf.

Obviously, what the Supreme Court is likely to decide in any case then before it depends to a considerable extent on its composition and the leanings of its individual members at the time. To close one's eyes to this, and to insist that there is some generalized, inviolate, and unchangeable academic constitutional law which does not depend on who is sitting on the Court at the time, is illogical and will undoubtedly adversely affect the ability to spot the important issues, and to advance legal arguments likely to persuade a majority of this current court, and not a panel of scholars, law review editors, etc.

Perhaps that's why studies suggest that law professors are only slightly better than blind chickens at predicting what the Supreme Court will do, as compared with practicing attorneys who were correct about 90% of the time. Moreover, constitutional law experts do least well at predicting outcomes when the key issues involve "economic activity" and "federalism" - two of the major factors in these Affordable Care Act cases. www.washingtonpost.com/blogs/ezra-klein/wp/2012/06/25/experts-ar ..

When health care reform was being debated, the overwhelming majority of constitutional law professors and other scholars not only argued that the individual mandate was clearly constitutional, but went so far as to opine that any suggestion that there might be constitutional problems was frivolous and/or solely motivated by politics. Had the potential for a serious constitutional challenge been seen before the essential elements of the new law were in place, it may have been possible for supporters to consider alternative mechanisms to achieve reform.

At the very least, had the constitutional problems been acknowledged in time, the bill might have included a tax on anyone without health insurance, rather than a so-called fine or penalty for failing to purchase it justified by the "Commerce Clause" or the "Necessary and Proper Clause." Although the operational result would appear to be the same, characterizing the enforcement mechanism one way or the other can make a world of legal difference. Lawyers have an expression - "form over substance" - meaning that how you accomplish an objective is often far more decisive regarding its legality than what is actually being achieved.

Although the seriousness of the constitutional challenges to the Affordable Care Act could not be denied after the Supreme Court accepted the cases for review and scheduled an unprecedented six hours of oral argument to consider them, many constitutional scholars apparently continued to underplay them, and continued to justify the mandate under these two clauses, rather than as a tax.

Fortunately for the administration, although it had repeatedly denied that the levy could be considered a tax, Solicitor General Donald B. Verrilli Jr. did argue, in his third alternative justification for the mandate, that Congress's power to levy a tax justified the mandate because the penalty for those who do not buy insurance, written into the internal revenue code, can be viewed as a tax. This proved to the the sole basis upon which, according to bare majority of the High Court, the mandate could by upheld as constitutional.

Even if most constitutional scholars are liberals and/or Democrats, that's no excuse for failing to acknowledge the existence of serious constitutional arguments, at least before a Supreme Court the way it is currently constituted, and for making predictions as the how the Supreme Court will vote which are so very different from those of scholars who are conservative, libertarian, or Republican, says Banzhaf.

To the extent that the study of constitutional law - which largely consists of a study of how the Supreme Court approached and decided cases in the past - enables scholars to make better predictions of outcomes than ordinary laymen, these predictions should be based on precedent and legal analysis, not political or philosophical leanings. Physicists, chemists, biologists, and astrophysicists may not always be able to accurately predict what will happen in new and novel situations, but their predictions should not depend on their politics, argues Banzhaf.

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW, Suite S402
Washington, DC 20052, USA
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