On Tuesday next week, the Supreme Court will hear oral argument over the constitutionality of the Affordable Care Act's "individual mandate," which requires virtually all Americans to purchase minimum health insurance coverage or pay a tax penalty. The individual mandate is undoubtedly the most controversial and unpopular aspect of President Barack Obama's health care reform.
The two-hour session -- twice the 60 minutes the high court allots for most cases -- promises to be a historic bout between the federal government and the 26 states and several private plaintiffs challenging the mandate as beyond the limits of congressional power. The argument will be all the more momentous because a sitting president's signature legislative achievement is on the line.
In the second of a four-part video series, former Acting Solicitor General Neal Katyal and libertarian legal scholar Randy Barnett, both Georgetown law professors, lay out the opposing sides' constitutional arguments on the individual mandate. Katyal defended the Affordable Care Act in three federal courts of appeals. Barnett was one of the intellectual architects of the constitutional challenge to the mandate and now serves on the legal team for the private plaintiffs before the Supreme Court.
"Congress, under Article I of the Constitution, is given the power to regulate interstate commerce," Katyal notes. "And whatever might be said about the Affordable Care Act, it's obviously dealing with interstate commerce: Health care is almost 18 percent of the gross domestic product."
"If mandates like this are upheld under the commerce clause, from now on they can be enforced up to and including imprisonment," argues Barnett. "That would be a new and dangerous power Congress has never had before."
The U.S. Court of Appeals for the 11th Circuit earlier accepted this sort of slippery slope argument. Some legal observers have pinned the government's chances of Supreme Court success on its ability to set forth a limiting principle that distinguishes the mandate to buy health insurance from a parade of hypothetical horribles of unlimited government, such as a requirement that all Americans eat broccoli.
In the video, Katyal describes three limiting principles that he expects the government to offer next week. Barnett parries them with his characteristic verve.
The government and the challengers have both urged the Supreme Court to rule squarely on the mandate's constitutional merits, telling the justices that if the mandate falls so must several other key provisions, if not the entire law. The justices ordered 90 minutes of argument on the latter issue -- whether the law can survive if the individual mandate falls -- for Wednesday, March 28. In addition, the Court will be starting its three-day sitting on Monday, March 26, with another hour and a half over whether to simply throw out the challenges on a technicality -- just in case these politically charged issues prove too hot to handle in the midst of a presidential election.
Video produced by Sara Kenigsberg.