Supporters and opponents of the Affordable Care Act have spent more than two years battling in federal courts and for public opinion over the constitutionality of the individual health insurance mandate. But what's to happen come late June after the Supreme Court justices make their final ruling, then skip town for their summer recess, leaving the combatants to push forward or pick up the pieces?
In truth, things do not look good for either side. Should the federal government lose, national efforts toward universal health care will be set back to square one. The challengers will have it only slightly better. If they lose, they can still turn their attention to the ballot box in November, where they can try to elect a president and a congressional majority devoted to repealing President Barack Obama's signature health reform measure. But a repeal would not erase the fact that the most conservative Supreme Court in three-quarters of a century found no constitutional infirmity with Congress' most ambitious economic regulation in as many years.
In the final installment of a four-part video series, former Acting Solicitor General Neal Katyal and libertarian legal scholar Randy Barnett, both Georgetown law professors, take stock of the consequences of a loss for their respective sides. Katyal defended the Affordable Care Act in three federal appeals courts before entering private practice and returning to academia. 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.
Barnett himself has plenty at stake. In 2005, he challenged the federal government's power to prohibit a woman from cultivating marijuana for her personal, state-legalized medicinal use. The court ruled against him, Gonzales v. Raich, and used its decision to reaffirm Congress' very broad powers to regulate interstate commerce. The health care challenge, then, could be the last, best hope for Barnett and his cohort of libertarians now rising within the conservative legal world to deal a blow for a sharply limited federal government. He is so invested in winning that he told HuffPost that he has not even contemplated losing.
"People may say they haven't thought about things, I really haven't thought about that at all," Barnett said. " I think it would be very bad for the country if we don't prevail and very bad for the Constitution, and that's why I'm really only thinking about prevailing at this point."
Katyal, too, considered a loss in stark terms. "I do think that it would be a grave step for the court to strike down this act and remove health care and this solution from the national discourse in terms of what legislatures are able to do constitutionally," he said.
For Katyal, the issue comes down to the democratic benefits of judicial restraint. "Look if you don't like Obamacare, there's a very easy solution, which is to vote the president out of office," said Katyal.
"This isn't as Chief Justice Marshall said in a great opinion called McCulloch v. Maryland ... some sort of law that passed 'unsuspecting' in the night," noted Katyal, referring to the widely revered third chief justice who molded constitutional law in favor of strong federal power during his tenure from 1801 to 1835.
"This is something that all the eyes of the country were upon ... and in the end of the day the Congress voted for this act. For the court to come in now and undo that I do think would be a grave step," said Katyal.
Video produced by Sara Kenigsberg.
CORRECTION: An earlier version of this article misspelled the name of the 1819 Supreme Court decision McCulloch v. Maryland.