On March 26th, the Supreme Court will begin hearing three days of oral arguments on the constitutionality of Obamacare. Some legal experts are calling the decision the Roe v. Wade of our generation, and that’s probably not an exaggeration.
The primary question before the Court is whether the commerce clause in Article I of the Constitution authorizes Congress to mandate that individuals purchase health insurance. This boils down to how the court defines “economic activity.”
The Justices must decide whether an individual’s decision to forgo health insurance becomes economic activity by virtue of the fact that at some point in their lives they must participate in the healthcare market. The slippery slope potential of that reasoning should be obvious: just about anything Americans choose to purchase or not purchase has some broader economic consequence.
Former Bush Solicitor General Paul Clement, advocate for the 26-state coalition challenging the law, can be expected to focus extensively on this lack of a “limiting principal.” If Congress can regulate Americans who intentionally chose not to engage in commerce, then Congress’ power is essentially without limit. Thus, the Court’s ultimate opinion has the potential to either make or break the idea that the Constitution restricts Congress’ authority to limited enumerated powers.
The big question for legal observers is whether Chief Justice John Roberts, Justice Anton Scalia, Justice Samuel Alito and Justice Anthony Kennedy will reveal their leanings during the arguments. Count on the questions and demeanor of these Justices to be closely scrutinized for any hints as to their ultimate decision.
The Obama administration only needs to convince one of the four Justices mentioned above to win the case, as the four liberal Justices are almost certain to uphold the law.
Despite the usual critique of Justices as strict political partisans, there’s no guarantee that all of the “conservatives” on the Court will strike down Obamacare’s individual mandate.
Both Roberts and Scalia have written prior opinions that hint that they could be convinced of the mandate’s constitutionality. In fact, The Hill reported last week that the Department of Justice is shifting its legal arguments in the case to arguments that Justice Scalia has previously endorsed. Roberts is also on record supporting the view that Congress has some powers that are not specifically delegated by the Constitution.
Alito’s views on the relevant issues in the case are anyone’s guess.
Justice Kennedy, the Court’s usual swing vote, is probably the most likely to side with the liberal wing. Constitutional scholar Erwin Chemerinsky joked to The Washington Post that he would “put Justice Kennedy’s photo on the cover” of the Court briefs if the rules allowed it.
If the court overturns the individual mandate, it would be a major repudiation of the liberal theory of governance which assumes that Congress should be given virtually unlimited discretion in addressing economic problems. On the other hand, if the individual mandate is upheld, the Court’s conservative revolution is more or less dead. The stakes couldn’t be higher.