Debating Obamacare

The Federalist Society — are you now or have you ever been a member? — held its 2011 National Lawyers Convention last week. One of the (many) highlights of the convention must have been the debate on the constitutionalilty of Obamacare between Harvard’s Carl M. Loeb University Professor Laurence Tribe and former United States Solicitor General Paul D. Clement of Bancroft PLLC. This is an excellent debate, must watching straight through to the end when Tribe fields questions from audience members including Mario Loyola and Randy Barnett.

Along with the late Senator Edward Kennedy, Professor Tribe is one of the men most responsible for the current form of the hearings on Supreme Court nominees. He set the stage for the 1988 battle over the confirmation of Robert Bork and testified for three hours during the Bork confirmation hearings, longer than any other witness.

Taking a look back at Ethan Bronner’s valuable account of the battle over the Bork confirmation, we find that then Senator Alan Simpson challenged Tribe’s Olympian pretenses at the hearing: “Now everybody has the right to identify with a political party and a political person. But I think we have to be aware of your strong political leanings and of the fact that the title ‘professor’ does not just allow you to sit outside of the mainstream of politics.”

Tribe denied that his political views had anything to do with his opposition to Bork’s confirmation. Bronner comments: “Simpson had a point…”

Tribe is a sophisticated constitutional analyst and a formidable adversary, but watching his remarks in the debate, I wondered: “Will this guy say anything to make a point?” In the course of his rebuttal to Clement’s powerful statement, Tribe distinguishes the Supreme Court’s rejection of the Commerce Clause to support the Violence Against Women Act and the Gun Free School Zone Act of 1990 from its application to support Obamacare. In the other cases, according to Tribe, Congress was “simply grandstanding…” By contrast, in the case of Obamacare, Congress was addressing a major national problem.

Yet only last year, Tribe was sucking up to Vice President Biden at the White House Conference on Closing the Justice Gap for America’s Working Families (really!) with remarks that belied his remarks last week on Obamacare. Tribe saluted Biden’s projects supposedly assisting the victims of domestic violence: “These efforts attack a plague that infects every community in our nation — a plague the Vice President has been pursuing ever since he drafted the Violence Against Women Act a decade and a half ago.”

Remember, Professor Tribe? Biden wasn’t grandstanding when he drafted the Violence Against Women Act, he was attacking a plague that infects every community in our nation. How could you have forgotten something so important so quickly? Biden and his colleagues in Congress were seeking to resolve a major national crisis — just like the proponents of Obamacare. Or not.

Tribe was in the news again this week as the recipient of the email from then Solicitor General (now Justice) Elena Kagan celebrating the passage of Obamacare. Tribe can undoubtedly explain to all concerned how Kagan is the perfect justice to pass impartial judgment on the constitutionality of Obamacare.

The video of the debate between Tribe and Clement is truly clarifying. I recommend it unreservedly. It is worth every minute of your time.

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