The Supreme Court will judge the constitutionality of the health care law based on precedent, not politics, writes Harvard Law School Professor Laurence H. Tribe ’66 in an op-ed in The New York Times. “There is every reason to believe that a strong, nonpartisan majority of justices will do their constitutional duty, set aside how they might have voted had they been members of Congress and treat this constitutional challenge for what it is — a political objection in legal garb,” he writes in his op-ed “On Health Care, Justice Will Prevail,” which appeared in the Feb. 8, 2011 edition of The New York Times. A renowned constitutional scholar, Tribe is the author of many books, including “The Invisible Constitution” (Oxford University Press, 2008) and “American Constitutional Law.” He most recently served as senior counselor for access to justice in the U.S. Justice Department. HLS Professor Charles Fried testified on the constitutionality of healthcare before the Senate Judiciary Committee earlier this month.

On Health Care, Justice Will Prevail

by Laurence H. Tribe

The lawsuits challenging the individual mandate in the health care law, including one in which a federal district judge last week called the law unconstitutional, will ultimately be resolved by the Supreme Court, and pundits are already making bets on how the justices will vote.

But the predictions of a partisan 5-4 split rest on a misunderstanding of the court and the Constitution. The constitutionality of the health care law is not one of those novel, one-off issues, like the outcome of the 2000 presidential election, that have at times created the impression of Supreme Court justices as political actors rather than legal analysts.

Since the New Deal, the court has consistently held that Congress has broad constitutional power to regulate interstate commerce. This includes authority over not just goods moving across state lines, but also the economic choices of individuals within states that have significant effects on interstate markets. By that standard, this law’s constitutionality is open and shut. Does anyone doubt that the multitrillion-dollar health insurance industry is an interstate market that Congress has the power to regulate? … Read more on »