Members Front Page The New Pier Entrance Buildings Front Page News and Commentary Questions and Answers Past Articles and Essays Essays on Public Ethics Citizens' Political Action Guide The New Pier Entrance Buildings What's on this Site? What Do You Think?


• Notes on the Healthcare Decision - 06/28/12

• Court Will K.O. O-Care, Experts Predict - 06/22/12

• Obamacare Decision Upon Us - 05/30/12

• Is Obamacare Doomed? - 04/03/12

• Don't Bet on a 5-4 Supreme Court Decision on Obamacare - 03/26/12

Notes on the Healthcare Decision - 06/28/12

So much for the "experts." ("Court Will K.O O-Care, Experts Predict," June 22, 2012) Whether the decision in the Healthcare cases is a "stunning victory for the Obama Administration," as stated in a number of press reports, or a "sad day for liberty," as one Republican congressman said, remains to be seen.

One thing is clear. Most (not all) of the Affordable Care Act, including the individual mandate, is a go for the time being. But what the decision actually means for constitutional law in future cases is not so clear. Undoubtedly, over the next few years, 50,000 op-ed pieces, talking-head rants, campaign speeches, and law review articles will seek to enlighten us.

As I stated earlier, I would not have been too surprised if the Court had upheld the law under the interstate commerce clause, if it followed the case-law trajectory established by decisions going back almost 200 years. One might compare this to the cone projecting the possible path of a tropical storm.

The Court could follow the path and uphold the law, or it could narrow the cone. In fact, this is what the Court did. The majority held that the individual mandate was not a constitutional exercise of Congress' power to "regulate commerce among the several states." The Chief Justice wrote, "The Federal Government does not have the power to order people to buy health insurance."

All of the justices agreed to this in principle, but the four justices who would have upheld the law under the commerce power argued that

In requiring individuals to obtain insurance, Congress is ... not mandating the purchase of a discrete, unwanted product. Rather, Congress is merely defining the terms on which individuals pay for an interstate good they consume: Persons subject to the mandate must now pay for medical care in advance (instead of at the point of service) and through insurance (instead of out of pocket). Establishing payment terms for goods in or affecting interstate commerce is quintessential economic regulation well within Congress' domain.

A unanimous Court also held that the Court was not barred from hearing the case under the Anti-Injunction Act. The holding here, in essence, was that Congress, in calling the "penalty" a "penalty," rather than a "tax," intended that it not be considered a tax for the purposes of the Anti-Injunction Act.

The decision, moreover, was not a slam dunk for the Administration with respect to the Medicaid question. (This part might fairly be called a "stunning defeat for the Administration" because it was called by the "experts" the weakest challenge to Obamacare.) In a 7-2 decision, in which Breyer and Kagan concurred, the Court held that Congress could not compel the states to provide Medicaid coverage to most poor people under 65 by threatening them with the loss of their existing Medicaid funding if they declined to comply with the new rules. Simply stated, this is a violation of the division of powers between the central government and the states.

Of course, the big surprise was the 5-4 decision, spearheaded by the chief justice, that, even if the individual mandate is not constitutional under the commerce clause, it was a valid exercise of Congress' taxing authority. This sealed the deal: the mandate is constitutional.

The ultimate fate of Obamacare is in the hands of Congress and the president. Obama praised the Court's decision. Romney vows to repeal it. Harry Reid admitted that the law needs some tweaking. A Rasmussen poll released today found that 54 percent of likely voters want the law repealed, a figure virtually unchanged since the law was passed two-years ago. Most Democrats like the law, while most Republicans and independent voters don't. Older voters favor repeal more than younger voters.

The official citation of the healthcare decision is National Federation of Independent Business v. Sebelius, 567 U. S. ____ (2012).

Court Will K.O. O-Care, Experts Predict - 06/22/12

Monday may be the day the Supreme Court will decide the fate of the Affordable Care Act, or Obamacare, but the decision could come as late as Thursday, June 28, the last day the Court is scheduled to meet. Whether it is up or down, Chief Justice John Roberts is expected to announce the decision.

The Purple Poll conducted a poll of 56 lawyers from May 30 to June 1, 2012, to predict the outcome of what some are calling "the case of the century." The Court will decide the constitutionality of the individual mandate and the Medicaid expansion, whether these provisions are "severable" from other provisions of the Act, or whether the suit by the states is barred by the Anti-Injunction Act.

Only 13 percent of the respondents believe the Court will apply the Anti-Injunction Act to the individual mandate. Both the government and the states opposed this position. The AIA is an ancient but still viable law which precludes a lawsuit challenging a tax before it is actually collected.

Eighteen of the lawyers surveyed had argued cases before the Supreme Court. Eleven of the respondents served as law clerks to Justices Breyer, Ginsburg, Kagan, or Sotomayor. Eighteen clerked for Chief Justice Roberts or Justices Alito, Scalia, or Thomas. The remaining nine worked for Justice Kennedy.

While I believe the decision could go either way and could even uphold the law by a substantial vote, the experts think otherwise.

Fifty-seven percent believe the Court will strike down the individual mandate, but 69 percent think the Court will find the mandate is severable or at least partially severable. In other words, the Court will not strike down Obamacare in its entirety.

Prior to the oral arguments, only 35 percent of the same group thought the Court would ax the individual mandate, but a higher percentage (27) believed the Court might apply the Anti-Injunction Act.

However, only 22 percent think the Court will declare the Medicaid part of the Affordable Care Act unconstitutional, but if it does, most (64 percent) believe the Court will find the Medicaid Act entirely severable from the rest of the law.

Seventy percent of the surveyed lawyers said, "As a whole the justices' questioning indicated that they were more skeptical about the law’s constitutionality than I had expected." Not a single respondent agreed that the justices' questioning indicated that they were less skeptical about the law’s constitutionality than expected.

Conclusion: In the end, the "experts" don't matter much. Whatever the result, we law geeks will have a field day next week.


Sam Baker, "Supreme Court experts predict justices will strike down healthcare mandate," The Hill, June 20, 2012,

Purple Insights, Affordable Care Act Survey, American Action Forum, June 2012,

Obamacare Decision Upon Us - 05/30/12

It's only a matter now of days or weeks before the U.S. Supreme Court will decide the fate of a key provision of the Affordable Care Act — the individual mandate. According to a survey of 1,000 likely voters conducted by Rasmussen in March, the majority (54 percent) believe that the Court will declare the mandate unconstitutional. While 37 percent favor the law, only 26 percent think the law, with its penalty, will survive the Court's decision. 1 When it comes to the question of should rather than will, an array of polls find that a majority or near-majority favor repeal of the healthcare law. The "RCP Poll Average" through May 27 shows the number of those favoring repeal holding steady at 49-51 percent since Jan. 2011, while support for the act has declined from around 43 percent to 38 percent in the same period. 2

In theory, public and press opinion should not significantly influence the Court. But Washington Post opinion writer Kathleen Parker (likewise, George Will) alleges some in the media are targeting Chief Justice Roberts, suggesting that if the Court goes against Obamacare, Robert's place in history will be ruined. Parker writes, "The left's narrative goes as follows: If the justices side with the Obama administration, they will be viewed as brilliant and nonpartisan. If the reverse occurs, why then, the justices are partisan, judicial activists who have delegitimized the court." 3

It's likely that if the Court holds the law unconstitutional and splits along the (I submit, largely mythical) "conservative-liberal divide," the case will be attacked by some in the press and, if history is a guide, by President Obama himself. But if the opinion polls are accurate, the decision would be viewed favorably by a sizable group of Americans also. How the decision — one way or other — will impact the presidential election is largely conjecture.

Many people think Obamacare goes too far. Under the Affordable Care Act, every American man, woman, and child will be required to carry some form of health insurance or an alternative scheme like Medicare. If not, they will face a penalty. Opponents of the mandate see it as an unconscionable (if not unconstitutional) encroachment upon the personal business of the individual and the family. Regardless of what Congress could have done constitutionally in the past, the federal government has generally stayed out of the individual and family's personal affairs, including healthcare and financial decisions. The healthcare law changes this in a fundamental way, thus seemingly going against "established" individual and parental rights to decide such matters free from the intervention of the central authority. Is it not logical to assume, if we, at the federal level, are a government of limited powers, there is some line to be found in the Constitution itself to what Congress may do under art. I, § 8, cl. 3 to "regulate commerce among the several states"?

If Congress can mandate health insurance, why not life insurance? Using essentially the same rationale of the health-law mandate, it could be argued that if I were to die without leaving to my heirs and my estate assets to cover my existing debts, this would have a "substantial impact" on interstate commerce.

I would further submit, however, that notwithstanding these sentiments and the media effort to intimidate the Court, the decision will be based ultimately upon precedent laid down in previous commerce clause cases. The issue is not the merits of the law itself — a question for Congress — but constitutionality.

The law is history. Much of the law which affects our daily lives in the present — contracts, property, civil torts and criminal offenses, marriage, and due process — relies upon centuries-old statutes and cases and, in some cases, even to law dating back to Roman times. Our sacred Bill of Rights is rooted in Magna Carta, signed and sealed at Runnymede by King John (Robin Hood's adversary) almost 800 years ago. Likewise, the decision of the Court in the instant case will rely partly on cases decided when Adams and Jefferson were still alive, as was the Father of the Constitution, James Madison.

Courts 200 years ago, of course, did not face questions like the healthcare mandate because "nanny state" issues were not at the forefront of America's commercial interests in the early 19th century. In those times, Americans were more interested in exploiting their new empire west of the Mississippi, British incursions, Indians, pirates, whiskey taxes, and the pros and cons of a central bank. Most of the commerce clause cases dealt with subjects like navigation rights.

If you were to read the interstate commerce cases from the earliest days of the Republic, you might be surprised to see that the Court has regarded the commerce power as very broad authority. The only limitation on Congress' power to regulate commerce other than what is in the Constitution itself is that it had to be commerce among the several states. For example,

This instrument [the Constitution] contains an enumeration of powers expressly granted by the people to their government. It has been said, that these powers ought to be construed strictly. But why ought they to be so construed? Is there one sentence in the constitution which gives countenance to this rule?

In the last of the enumerated powers, that which grants, expressly, the means for carrying all others into execution, Congress is authorized "to make all laws which shall be necessary and proper" for the purpose. But this limitation on the means which may be used, is not extended to the powers which are conferred; nor is there one sentence in the constitution, which has been pointed out by the gentlemen of the bar, or which we have been able to discern, that prescribes this rule. We do not, therefore, think ourselves justified in adopting it.

What do gentlemen mean, by a strict construction? If they contend only against that enlarged construction, which would extend words beyond their natural and obvious import, we might question the application of the term, but should not controvert the principle. If they contend for that narrow construction which, in support or some theory not to be found in the constitution, would deny to the government those powers which the words of the grant, as usually understood, import, and which are consistent with the general views and objects of the instrument; for that narrow construction, which would cripple the government, and render it unequal to the object for which it is declared to be instituted, and to which the powers given, as fairly understood, render it competent; then we cannot perceive the propriety of this strict construction, nor adopt it as the rule by which the constitution is to be expounded.

As men, whose intentions require no concealment, generally employ the words which most directly and aptly express the ideas they intend to convey, the enlightened patriots who framed our constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said. If, from the imperfection of human language, there should be serious doubts respecting the extent of any given power, it is a well settled rule, that the objects for which it was given, especially when those objects are expressed in the instrument itself, should have great influence in the construction.

[....] We know of no rule for construing the extent of such powers, other than is given by the language of the instrument which confers them, taken in connexion with the purposes for which they were conferred.

The words are, "Congress shall have power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes."

Imagine that this reading of constitutional law is about the individual mandate and not about Robert Fulton's steamboat. But this was Chief Justice John Marshall's opinion in the landmark 1824 commerce clause case, Gibbons v. Ogden. 4 The case was argued before the Court by no-less a figure than Daniel Webster. (As Reagan might have said to the gentlemen who argued the present case, "I knew Daniel Webster and ....")

However, Chief Justice Marshall and the early Supreme Court also held the view that "commerce among the several states" means "commerce among the several states." Later cases 5, in the historical context of the Great Depression, held that almost any activity which affects interstate commerce is within the scope of the commerce power even if it doesn't involve the production, selling, or movement of goods and services from one state to another.

Thus, the Court could hold in 2005 that persons violated a federal drug law enacted under the commerce clause because the possession of "home grown" marijuana affected the general scheme Congress had erected to prevent interstate movement of certain illegal drugs. This was in spite of the fact that the parties in the case never bought or sold their marijuana or dealt with anyone out-of-state. 6

What we are left with in the wake of Gibbons and the more recent decisions is an almost plenary power vested in the legislative branch of the federal government, limited only by the Constitution itself. Therefore, Congress could not constitutionally abridge the freedom of speech or the powers reserved to the states under the authority of art. I, § 8, cl. 3 to "regulate commerce among the several states." It is argued in the instant case, however, that the failure of persons to cover their own medical costs drives up the cost of health insurance on a national basis and potentially shifts healthcare costs to taxpayers — the act of not acting, accordingly, substantially affects interstate commerce and undermines the Affordable Care Act's scheme to make adequate healthcare available to all Americans. Given the line of cases already decided under the commerce clause, it is a compelling case.

Conclusion: I find myself with the 21 percent of people in the above-referenced Rasmussen poll who are not sure what the outcome of the individual mandate case will be, but it will definitely be a landmark decision. If the Court strikes down the law, it will either retreat from precedent or break new ground.


1 "54% Expect U.S. Supreme Court To Overturn Health Care Law," Rasmussen Reports, Mar. 29, 2012, rasmussenreports.

2 RealClearPolitics Polling Data: Repeal of Health Care Law.

3 Kathleen Parker, "The public trial of Justice Roberts," The Washington Post, May 22, 2012, Cf. George Will, "Liberals put the squeeze to Justice Roberts," The Washington Post, May 25, 2012,

4 22 U.S. 1, 188-189 (1824). [Edited]

5 "Is Obamacare Doomed?" Apr. 3, 2012.

6 Gonzales v. Raich, 545 U.S. 1 (2005). Justice Thomas dissented, arguing that the defendants had not engaged in any form of commerce and, therefore, were not subject to federal regulation.

Is Obamacare Doomed? - 04/03/12

President Obama is "confident" the Supreme Court will uphold the individual mandate which is central to the healthcare legislation passed by Congress and signed into law two years ago. The president said so at a press conference on Monday, Apr. 2. 1

Others are equally confident the Court will declare the mandate unconstitutional sending Obamacare to the grave. In fact, in the aftermath of last week's oral arguments over the healthcare law, predictions by pundits and so-called experts of the outcome of the Court's deliberations have been as varied as apples and oranges at a farmer's market. One commenter on The Hill website responded to the president's remarks, "I'm equally confident pigs will begin to fly next week." 2

I, also. I listened to all the oral arguments, and the only thing I'm confident of is that the Court will decide one way or other ... maybe.

The Court could defer a decision on the merits of the case if it applied the Anti-Injunction Act, 3 but it is more likely that the justices will either uphold or strike down the law. It is possible that whatever the decision, the justices will not agree on a "limiting principle" of Congress' authority under the interstate commerce power in the Constitution. 4

Over several generations, the Court decisions have lead to an almost semantic change in the definition of interstate commerce and therefore the power itself. Virtually any commercial activity is interstate commerce, the Court has decided, subject to regulation by the Congress — even if the activity itself is purely local — if it affects interstate commerce. Even "conservative" justices, like Scalia, have embraced this expanded view of commerce. 5 Yet the Court has never clearly defined where the power to regulate stops. Does the individual healthcare insurance mandate cross the line, wherever the line might be? Is there a limit save in the Bill of Rights? That, not the wisdom of Obamacare, is the question.

I have an herb garden in my yard. I grow a few sweet potatoes, also. I might give some to a friend or neighbor, but I don't sell them on the open market. In a literal sense, I'm not engaged in commerce — if that means buying or selling things I produce. I'm not a farmer. Still, clearly, my home garden affects interstate commerce. I don't buy as many herbs and sweet potatoes at the Fresh Market. The manure I use might come from Wisconsin cows. The tools I use were undoubtedly made out-of-state or even in China. Could Congress impose production limits on my home garden? Could it require me to buy my herbs and potatoes at the grocery store or pay a penalty?

In his recent column, Washington Post opinion writer Charles Krauthammer stated the issue before the Court thusly:

Ultimately, the question will hinge on whether the Commerce Clause has any limits. If the federal government can compel a private citizen, under threat of a federally imposed penalty, to engage in a private contract with a private entity (to buy health insurance), is there anything the federal government cannot compel the citizen to do?

If Obamacare is upheld, it fundamentally changes the nature of the American social contract. It means the effective end of a government of enumerated powers — i.e., finite, delineated powers beyond which the government may not go, beyond which lies the free realm of the people and their voluntary institutions. The new post-Obamacare dispensation is a central government of unlimited power from which citizen and civil society struggle to carve out and maintain spheres of autonomy. 6

Some of the justices sounded a similar theme in their questions to counsel. With respect to the individual mandate provision of the healthcare law, this is the question they seem to be grappling with most.

When I was in law school, about the time the earth and moon were forming out of the cosmic dust, a broader interstate commerce power than may have been envisioned by the Founders was already well-established by the case of Wickard v. Filburn, a Supreme Court decision which upheld crop-production limits imposed on farmers by the federal government. 7 In the '30's and '40's, the idea that the government could tell farmers what to grow seemed Draconian. Farmer Filburn wanted to grow some wheat for his own consumption beyond the allowed amount, and he did, and he was fined. The government's right to do this was upheld by the Supreme Court because Filburn's defiance of the federal mandate affected interstate commerce. How? Because he used his own wheat instead of wheat bought on the open market. Thus, the government now argues, if a person self-insures, he doesn't buy health insurance on the open market, therefore affecting interstate commerce. Congress has decided, as it did in the wheat-production case, this is a bad thing, because it almost inevitably shifts some healthcare costs to the public and drives up the cost of health insurance for those who responsibly maintain coverage.

The Court, by well-established jurisprudence, would defer to the judgment of Congress on this "political question," provided the mandate does not cross the line, wherever it is, of its power to regulate interstate commerce or to tax.

One of the obvious distinctions between Wickard v. Filburn, most of the interstate commerce cases, and the Obamacare case is that the regulations on those cases were aimed at producers of commerce: farmers, furniture-makers, truckers, railroads. Some of the Affordable Care Act provisions, likewise, are directed at insurance providers (e.g., they must provide coverage for children up to 26 years of age), but the individual mandate in particular regulates consumers directly.

Is that the limiting principle, perhaps? Traditionally, whatever rules are imposed on businesses engaged in commerce, people were at liberty — or thought they were — to decide (with the exception of taxes) how they spend their own money, as long as it's not used to hire killers or bribe public officials. Most people assume that their business is their business, but it's not clear whether such a "right to privacy" is actually protected by the Constitution. 8

Could it not otherwise be argued that whatever healthcare needs I have and how I pay for them is my private business beyond the reach of government — or at least Congress? The counter-argument is that if one self-insures and miscalculates his future healthcare needs, it shifts the cost of his healthcare to the taxpayers. The other side of that argument is that this is only so because many state and local governments choose to provide mostly-free public healthcare services to low-income people and the uninsured. (Example: Broward Health.) We could also lump into this related services like emergency response teams that exist in many places at taxpayer expense. Most people, I surmise, are perfectly fine with this, until we reach the testy question of illegals.

The government at the state and federal levels also choose to provide Medicare and Medicaid. Nothing — other than political pressure — compels them to do so and nothing compels individuals to participate in either program. I'm on Medicare, but heretofore I could have opted out of Social Security benefits and Medicare if I wanted to. It would be my decision.

The only near-exception to the distinction between the producers and consumers of commerce I know of is the medical marijuana case decided by the Supreme Court in 2005. 9 In this case, a defendant, Raich, used home-grown weed for her own "medicinal" purposes. It was "home-grown" at another person's house and provided to her at no charge, but she had a hand in processing the raw material into other forms for her own use. Another respondent in the case, Diane Monson, grew her own. California law permitted the use of marijuana for "medicinal" purposes and both parties used it under doctor supervision. In other words, they were not hippies sitting around in a daze listening to new-age music, but people with a verifiable need for pain relief which the marijuana provided. (Incidentally, a number of states permit the use of medical marijuana.)

However, the state law permitting the use conflicted to an extent with federal laws dating back as far as 1937, which were basically intended to keep marijuana out of interstate commerce in the precise sense.

Federal and state law enforcement agents, acting under the federal Controlled Substances Act of 1970 (CSA) 10, seized Diane Monson's crop of six cannabis plants. The Supreme Court upheld their authority, citing the 1942 benchmark case, Wickard v. Filburn. Significantly, both Justice Scalia and Justice Kennedy were in the majority in this decision. In a separate concurring opinion, Scalia wrote, "I ... agree with the Court that ... Congress could reasonably conclude that its objective of prohibiting marijuana from the interstate market 'could be undercut' if those activities [what Raich and Monson were doing] were excepted from its general scheme of regulation. That is sufficient to authorize the application of the CSA to respondents." 11

Of the current sitting justices, only Justice Clarence Thomas dissented in the Raich case, arguing that the "CSA exceeds Congress’ commerce power as applied to their conduct, which is purely intrastate and noncommercial," because it did not involve buying or selling of goods and services. 12 Most analysts I've read seem to think that Justice Thomas will side with striking down the individual mandate, but I find nothing in his dissent in this case, or in Justice O'Connor's dissenting opinion, with which he concurred in part, that gives us a clear indication of how he might stand on the present issue. 13 In fact, Thomas did not concur in Part III of O'Connor's dissent, in which she wrote, "This overreaching [by the federal drug laws under the umbrella of the interstate commerce power of Congress] stifles an express choice by some States, concerned for the lives and liberties of their people, to regulate medical marijuana differently," and therefore violates the principle of federalism. 14 Nor do I see anything in O'Connor's opinion that would indicate she would vote against the mandate if she were on the Court today, notwithstanding her dissent in the marijuana case.

What about Chief Justice John Roberts? In my previous article, I laid out a scenario where the individual mandate provision could be upheld by 6-3 vote. 15 Most seem to think the vote is more likely to be 4-4-1, the "1" being Justice Kennedy. Charles Krauthammer, quoted above, has posed a situation where the chief justice might vote with the "liberal" justices, if it turns out their position will prevail. Rather than a 5-4 decision upholding the statute, which appears to divide the Court along ideological (political) lines, the chief justice would make it 6-3, to give more credibility to the result.

In the political realm, the result (5-4, 6-3, 9-0) may become a moot point. Adverse public opinion may force Congress to modify, if not repeal, the individual mandate. 16 All the major polls show that more people — by wide margins in some polls — want the healthcare law repealed than want it to stand in its current form. 17

CNN legal analyst Jeffrey Toobin, who at first predicted the Court would uphold the Affordable Care Act, stated after the oral arguments that the government's case was, to use his phrase, "a train wreck for the Obama Administration." To be sure, the questions asked of U.S. Solicitor General Donald Verrilli by the justices were tough and Verrilli struggled to answer some of them, especially with regard to what, if any, principle limits the interstate commerce power. Verrilli was also stuck on the horns of a dilemma when he argued that the "penalty" exacted under the individual mandate was not a tax (so that the states had standing to challenge the law in court which they may not have if the "penalty" were a tax), but was partly authorized by the tax power of Congress.

Most lawyers will tell you that it is a mistake to read too much into the questions asked by justices in the oral arguments. Justices often ask pointed questions that do not necessarily reflect their own opinions to draw out of the parties concepts that the Court can embrace to make a determination.

A recent article in Slate online magazine, a product of the Washington Post, supports this view, but points out several Supreme Court forecasting models based partly on an analysis of oral arguments which have had varying degrees of success.
Predicting the outcome of the present health care reform case is difficult, because there are several different questions being debated and more than two attorneys appearing before the court. However, a state-of-the-art model created by professors Ryan Black of Michigan State, Sarah Treul of the University of North Carolina, Timothy Johnson of the University of Minnesota, and Jerry Goldman of Chicago-Kent College of Law suggests that the court will declare the individual mandate unconstitutional by a 5-4 vote. The big question mark, of course, is swing voter Justice Kennedy. He asked Solicitor General Donald Verrilli Jr. two more questions than he asked the challenger’s attorney, Paul Clement, with 14 percent more negative language, suggesting a slight preference for overturning the law. 18

Conclusion: The Constitution gives the Congress power to regulate commerce among the several states. Since the 1930's, the Supreme Court has allowed this power to expand, not so much by saying what Congress may not do under it, but by redefining the concept of interstate commerce. The question before the Court now is whether the individual mandate in the Affordable Care Act — Obamacare — goes farther than what the Constitution allows. Is the interstate commerce power an enumerated, limited authority, or a plenary power of a yet only imagined scope to be decided by the Congress? This is what the Court must decide; whatever it decides, roughly half of us will be unhappy.


1 Easley and Parnes, "Obama 'confident' Supreme Court will uphold his healthcare reform law," The Hill, Apr. 2, 2012,

2 Id., comment, "Just the Facts."

3 "Don't Bet on a 5-4 Supreme Court Decision on Obamacare", Mar. 23, 2012.

4 U.S. Const. art. I, § 8. ("The Congress shall have Power ... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.").

5 Gonzales v. Raich, 545 U.S. 1 (2005).

6 Charles Krauthammer, "Obamacare: The reckoning," The Washington Post, Mar. 22, 2012,

7 317 U.S. 111 (1942).

8 U.S. Const. amend IX. ("The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.").

9 Gonzales v. Raich, above, n. 5.

10 21 U.S.C. § 801 et. seq.

11 545 U.S. 1, 42. (Citations omitted.)

12 Id. at 59.

13 Id. at 42-57.

14 Id. at 57.

15 Scalia and Kennedy join Ginsberg, Breyer, Kagan, and Sotomayor, to upheld the mandate.

16 See Scott Rasmussen, "Even If It Survives the Court, the Health Care Law Is Doomed," Rasmussen Reports, Mar. 30, 2012,

17 RealClearPolitics Polling Data: Repeal of Health Care Law.

18 Brian Palmer, "A 5-4 Vote Against? Or 6-3 in Favor? How reliable are we at predicting the outcomes of cases before the Supreme Court?" Slate, Mar. 29, 2012,

Don't Bet on a 5-4 Supreme Court Decision on Obamacare - 03/26/12

As early as 2:00 p.m. on Friday (Mar. 23) and more than 72 hours before the fun was scheduled to start, people were already lining up to hear the oral arguments before the Supreme Court, to begin today, in the case brought by 26 states and others challenging the constitutionality of the Patient Protection and Affordable Care Act (ACA). Seating in the courtroom is limited, and except for reporters and dignitaries, first come, first serve. Only about 60 seats are available for people without tickets.

The arguments, which will be heard over a period of three days, will not be televised, but audio recordings and transcripts will be published on the Supreme Court website. They may also be heard on C-SPAN 3, beginning on Monday afternoon.

The Affordable Care Act ("Obamacare") is complicated. The legal issues arising under it are complicated. I will endeavor to write a simple explanation. (Although the Court agreed to review a number of lower-court decisions on the subject of the Affordable Care Act, I will refer to it as a "case.")

First off, the case is not about Obamacare, as such. It is not about the merits of the act, as stated by the government's petition for a writ of certiorari, "to make affordable health insurance more widely available, to protect consumers from restrictive insurance underwriting practices, and to reduce the uncompensated costs of medical care obtained by the uninsured." The Court will not decide whether a national system of healthcare is needed or desirable. The case is not about whether the Affordable Care Act is the right solution. These are political issues the Court will not — cannot — reach.

The Court will consider four issues: (1) The constitutionality of the individual mandate. Does Congress's interstate commerce power reach this far, to require everyone to carry health insurance or be subject to a penalty? (2) The constitutionality of certain portions of the act relating to Medicaid. (3) Whether, if the Court strikes down one or more provisions of the act, the whole act falls. (4) Whether the states had standing to sue under the provisions of an obscure 1867 law, the Anti-Injunction Act (AIA).

The fourth question is the first in line for oral arguments. The AIA provides that "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed." Ironically, both the government and the states agree at this level of review that the AIA does not apply and did not bar the states' actions. The government's position is premised on its contention that the "penalty" exacted under the act in the individual mandate provision is not a tax. Thus, it reasons, "the assessment or collection of [a] tax" is not the case here. The IRS was assigned to collect the penalty, it further argued, only as an administrative convenience, not because it is a tax on income or otherwise.

However, if the Court were to rule that the Anti-Injunction Act does apply and barred the state's initial suits, it would not decide the question of the individual mandate, for now.

Although many expect a 5-4 decision, which way depending on Justice Kennedy, this may not be the case at all. Both Kennedy and Justice Scalia were in the majority of a 2005 case upholding a federal law regulating home-grown medical marijuana — suggesting that either or both justices may embrace a more expanded view of the interstate commerce clause of the Constitution which will be required to uphold the individual mandate provision. A 6-3 Supreme Court decision upholding the Affordable Care Act is not beyond the realm of possibility.

Conclusion: As the title to this article suggests, the outcome of the case challenging the constitutionality of the healthcare law is by no means itself a clear case.