By the time that I had started working as a counsel on the Senate Judiciary Committee, in 2003, it was clear that the U.S. Supreme Court would not allow the commerce clause to serve as the license for congressional intervention into state action that it once had. Unlike congressional staff, legal academia is too often significantly lacking in diverse political thinking, and this hampers its ability to successfully accomplish its oft-sought-after constitutional soothsaying.
The Supreme Court’s ruling that the insurance mandate in the Patient Protection and Affordable Care Act exceeded Congress’ authority under the commerce clause was not particularly surprising if you didn’t listen too closely to the vast majority of legal academics. Although the academy is significantly diverse in gender, race, sexual orientation and, to some extent, even national origin, law professors remain remarkably monolithic in viewpoint. Their political thinking is generally liberal. And the legal academy is typically favorable to a highly empowered federal government with some good historical reason. It was a strong view of federal power and the commerce clause that allowed Congress and the president to drag a resistant South away from explicit discrimination persisting almost a century after the enactment of the 14th and 15th amendments. And law professors still properly view these events as one of the most dramatic positive political and legal events occurring in their lifetimes. This viewpoint, however, clouds legal academia’s perspective, which led to the academy-initiated popular chorus chanting the constitutionality of the insurance mandate under the commerce clause.
