When President Barack Obama signed the health care bill two years ago, the legal challenges to the law were widely belittled as long shots — at best.
But as the cases head to the Supreme Court this week, what looked to many like far-out legal arguments to undo “Obamacare” don’t seem so zany anymore.
“If you don’t like it, repeal it or amend it. But don’t ask the courts to do the job for you, because they won’t,” Harvard Law professor Charles Fried, who served as solicitor general in the Reagan administration, told Fox News’s Greta Van Susteren in April 2010.
Pressed on whether he might be wrong, Fried replied: “Well, I suppose I could. But I’ll tell you what, I would be happy to come on this program and eat a hat which I bought in Australia last month made of kangaroo skin.”
Fried’s offer was extreme, but his skepticism wasn’t. Many legal scholars, including respected conservatives, pooh-poohed the idea that the courts might actually strike down the law or the individual mandate requiring most Americans to get health insurance or pay a fine.
Yet on Monday, three days of oral arguments about the law begin at the high court — the most time justices have devoted to a single law since 1966.
The challengers’ journey from the near-fringe of legal thought to coming within striking distance of knocking out Obama’s signature legislative achievement has coupled an intense legal assault with a communications drive to convince elites and the public that the law violates the Constitution.
“Once the Supreme Court grants review of the case and sets six hours of arguments over three days, it becomes a blockbuster case where, either way, there’s going to be a landmark ruling,” said Doug Kendall of the Constitutional Accountability Center, a liberal legal group.
“Most people think the government is likely to win more than five votes, but the arguments that seemed off the wall now seem on the wall, seem plausible and, for some people, even persuasive,” said Neil Siegel, a Duke law professor who has written extensively in support of the law.
For most of 2009, as Congress began to draft and debate the health care bill, the individual mandate drew little criticism — let alone a sustained argument that it would be unconstitutional.
“The debate about the individual mandate did not even come up until very late in the process of the bill itself,” said Neera Tanden, a key staffer on the administration’s health care team during the passage of the law. “It was a Republican idea. … I was looking for Republican opposition to the individual mandate, but the first letter they wrote on the bill was just about costs and the public option.”
Tanden, now president of the liberal Center for American Progress, attributes the initial wave of attacks on the law’s constitutionality to the rise of the tea party movement in the summer of 2009 and to libertarian legal scholars looking to rein in Congress’s power.
“There was a strategy of far-right thinkers to fundamentally relitigate the meaning of the Commerce Clause,” said Tanden, referring to the constitutional provision allowing Congress to regulate commerce “among the several states.”
The first big steps in the legal campaign against the law were a pair of op-eds in The Washington Post and The Wall Street Journal in August and September 2009, authored by former Justice Department officials David Rivkin and Lee Casey.
“The federal government does not have the power to regulate Americans simply because they are there,” Rivkin and Casey declared in the Post.
“Such a mandate … would expand the federal government’s authority over individual Americans to an unprecedented degree. It is also profoundly unconstitutional,” the pair wrote in the Journal.
In an interview, Rivkin said the crusade was a lonely one at the outset.
“Lee and I were the only people talking about it. … Nobody else was interested in this. [House Speaker Nancy] Pelosi was asked about it and answered, ‘Are you kidding me?’” Rivkin noted. “There were no hearings in the House or Senate Judiciary Committees on whether this was constitutional. … Nothing like that happened.”
Indeed, around the time that the op-eds appeared, several Republican senators, Olympia Snowe of Maine, Mike Enzi of Wyoming and Chuck Grassley of Iowa, were part of a so-called “gang of six” trying to craft bipartisan health care reform legislation. News stories from the time quote them complaining about the cost of Democratic proposals and the implications of a government-run insurance program, but there is little indication they objected to the basic premise of the individual mandate.
Sen. Orrin Hatch (R-Utah), who supported the individual mandate in the 1990s, did list it among concerns he had when he quit bipartisan talks on the health bill in August 2009.
Then, in December 2009, The Heritage Foundation released an influential legal memo, calling the mandate “unprecedented and unconstitutional” — even though the conservative think tank was a key promoter of the idea in the late 1980s and 1990s.
A co-author of the Heritage legal memo, Randy Barnett of Georgetown University law school, said he was not surprised that the constitutional question was slow to gain traction in Congress.
“I don’t think I’d view Republicans in Congress as the touchstone of the constitutionality of any particular issue. The fact that Republicans in Congress may have missed a constitutional problem doesn’t keep me up at night thinking I must be wrong,” Barnett said.
However, Barnett noted that in December 2009, Sens. Jim DeMint (R-S.C.) and John Ensign (R-Nev.) offered an unsuccessful point of order on the Senate floor objecting to the mandate as unconstitutional.
After the health care bill was signed into law by Obama in March 2010, a flurry of lawsuits were filed. One of the challenges, led by Florida, quickly signed up 25 state attorneys general as plaintiffs.
But the suits got little respect in the legal community.
“In my view, there is a less than 1 percent chance that the courts will invalidate the individual mandate,” law professor and prominent libertarian blogger Orin Kerr of George Washington University told the Los Angeles Times days after Obama signed the legislation.
That sentiment began to change in December 2010, when Richmond-based U.S. District Court Judge Henry Hudson became the first judge to rule the mandate unconstitutional.
“A huge inflection point was Judge Henry Hudson’s ruling in Virginia,” Barnett said. He added that the day of the decision he got an email from a key legal thinker on the left saying, “As of this morning, your theory is officially not frivolous anymore.”