The large interest shown by the public in the three days of oral arguments devoted to the constitutional challenge to the Affordable Care Act (ACA) should be heartening to any fan of the US Constitution. Americans of all stripes listened to the arguments, learned the precedents and constitutional clauses the arguments relied on and engaged with the rich history and philosophy surrounding the Constitution. I doubt Roscoe Filburn, of Wickard v. Filburn fame, would ever have expected his name to be bandied about by so many people 70 years after his case was decided.
On the second day of argument, in which the Court took up the question of the “individual mandate,” the conservative justices each showed extreme skepticism that the commerce power gives Congress the ability to force people to purchase insurance. Some academics and commentators had gone so far to predict that the argument for the constitutionality of the individual mandate was so easy that even conservative stalwarts like Justice Antonin Scalia would kowtow to the government’s arguments. This was rapidly proven to be untrue. Justice Scalia in particular assailed the solicitor general with questions that demonstrated he understood the finely tuned arguments and subtle distinctions of the challengers.
The general anti-ACA tenor of the arguments has opponents of the act cautiously optimistic that the Supreme Court might actually strike down all or part of it. An argument that once had more skeptics than believers now may have more believers than skeptics, and five of those believers might be on the Supreme Court.
Supporters of the ACA are already upset that the Court was antagonistic to the government’s arguments in favor of the mandate. In a number of opinion pieces, the groundwork is already being laid for a fusillade of attacks on a “partisan” and “activist” conservative Court in the event that the ACA is struck down in whole or in part. The general theme of these editorials is the same as it was when the legal attack on the law was initiated — “there’s nothing to see here, there are no viable legal arguments against the law and only an ideologically motivated, hyper-partisan Tea Party Republican or Libertarian would strike it down.”
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