Monday, May 16, 2011

Good Lawyering, Bad Politics

Newt Gingrich has had me shaking my head before. But I can’t recall anything like the whiplash he has administered over the last two days. Sunday, he was on Meet the Press explaining why a law penalizing people for not purchasing health insurance in the private market is a fine idea:
“‘I agree that all of us have a responsibility to help pay for health care. And I think that there are ways to do it that make most libertarians relatively happy,’ Mr. Gingrich told the host David Gregory. ‘I’ve said consistently, where there’s some requirement you either have health insurance or you post a bond or in some way you indicate you’re going to be held accountable.’”
Today Gingrich put out this:



I never thought I'd be feeling a pang of sympathy for Gingrich.  But this is what happens when litigation preempts politics. A lawyer’s principal duty is zealously to represent his client’s interests as his client understands them. When a bunch of politicians decide to use the courts to satisfy a public policy preference, it’s their lawyers' job to come up with a legal rationale that gives them the best shot at prevailing in court. There’s no guarantee, however, that a viable legal theory will promote good public policy, or promote the democratic legitimacy of whatever policy we end up with. That’s not the lawyers' job.

Conservatives can recognize how problematic politically motivated litigation is when it comes to, say, the regulation of CO2 emissions. Having been unable to get Cap-and-Trade or a more straightforward carbon tax through Congress, a bunch of liberal litigants got the courts to hold that CO2 is a "pollutant" within the meaning of the Clean Air Act. At least in principle, that makes us all subject to EPA regulation every time we exhale and encourages the EPA to regulate CO2 emissions through grotesquely inefficient command and control techniques. Worse, whatever CO2 regulations the EPA imposes in the exercise of its now unbridled discretion will enjoy little democratic legitimacy because they were never contemplated by congressmen who voted for the Clean Air Act and the president who signed it. That, conservatives never tire of telling us, is no way to make public policy in a democracy. And they're right.

But aren’t conservatives doing pretty much the same thing with respect to ObamaCare? A bunch of red state politicians looking for legal permission not to implement a duly enacted federal law have hired some good lawyers to come up with a legal theory about why they shouldn't have to. As it happens, I don’t think that the legal argument that regulating inactivity exceeds the federal government's powers under the commerce clause will, or should, carry the day. But I’m brimming with professional admiration for what the lawyers pulled out of their hat.

Yet here too, the standards for good lawyering have very little to do with, and get in the way of applying, the standards for making effective and democratically legitimate public policy. That leaves a wonkish politician trying to make a name for himself, like Gingrich, caught between two stools. He has long thought that something like an individual mandate is an integral feature of market-based health care reform and would like to generate a democratic mandate for doing something constructive, and politically rewarding, along those lines. That's his job as a conservative politician.  But, owing to the exertions of his ideological comrades in the courts, Gingrich finds it politically impossible to give voice to his policy message because it might leave the impression that ObamaCare is constitutional.  So he declared war on the law of non-contradiction instead.

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