With the U.S. Supreme Court's four-justice liberal bloc widely expected to uphold the individual mandate in the health care case it will hear next week, the challengers to the Affordable Care Act must convince the five GOP-nominated justices that the law's key provision is beyond Congress' constitutional power to regulate interstate commerce.
Justice Clarence Thomas is already regarded as a lock. In his twenty years on the Court, Thomas has consistently given a parsimonious reading to the commerce clause that, if effected, would eliminate much of the modern administrative state.
But it will not be easy for the 26 states and several private parties challenging the mandate to sweep the remaining four members of the court. Chief Justice John Roberts and justices Antonin Scalia, Anthony Kennedy and Samuel Alito have all at some point articulated broader views of Congressional power or championed judicial restraint. That could lead to a ruling in favor of the Obama administration when the decision comes down by late June.
Further, two conservative judges on the U.S. Courts of Appeals have said that the mandate is constitutional. Last June, 6th Circuit Judge Jeffrey Sutton, a George W. Bush appointee and former Scalia law clerk, wrote, "[c]all this mandate what you will -- an affront to individual autonomy or an imperative of national health care -- it meets the requirement of regulating activities that substantially affect interstate commerce."
And in November, D.C. Circuit Judge Laurence Silberman, Reagan-appointed and part of the conservative legal movement, derided the challengers' "view that an individual cannot be subject to Commerce Clause regulation absent voluntary, affirmative acts that enter him or her into, or affect, the interstate market."
In the third of a four-part video series, former Acting Solicitor General Neal Katyal and libertarian legal scholar Randy Barnett, both Georgetown law professors, reflect on what these considerations hold for the Supreme Court's ultimate decision. Katyal defended the Affordable Care Act in three federal appeals courts before entering private practice and teaching. Barnett was one of the architects of the constitutional challenge to the mandate and is now on the legal team for the private plaintiffs in the case.
"I think that the fact that these two extremely prominent, extremely well-thought-of judges, Silberman and Sutton, have written what they've written, makes it extremely hard to strike down the Affordable Care Act," Katyal said.
Barnett, however, said his side's victory in the 11th Circuit "is a sign that the challenge is a serious one."
"And you don't even need that," he said. "Just notice that the Supreme Court granted six hours of oral argument, which is the longest oral argument in 47 years, and that will tell you the Supreme Court thinks this is a very serious case."
Katyal noted the ideological irony surrounding the court fight. "When I was in law school, I think the conservative movement had one really central idea that was really powerful, which is this idea that in a democracy, we shouldn't let judges rule us," he said.
"I find it interesting now the courts' compositions have changed that a group of younger conservatives have come along and said, 'Oh no, we actually like the courts to do our work for us when we can't win in the democratic process.'"