Health Care: Liberals Eye Scalia and Roberts Vote

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The opinion, however, lays out five factors, several of which narrow its scope.

"The opinion in Comstock was a very narrow expansion of the power to incarcerate people for violating federal law," says Randy Barnett, a law professor at Georgetown University Law Center who is representing the small business group challenging the health care law. "It narrowed the scope of the holding in ways that would distinguish that law from the health care law. For example, there was an explicit opt-out for states in Comstock, there is no opt-out for states for the individual mandate."

Lower Court rulings

Supporters of the law were ecstatic when two lower court judges who are highly respected in conservative circles voted to uphold the law in other cases challenging the individual mandate. While the Supreme Court will hear a challenge from the 11th Circuit Court of Appeals, several other lower courts heard similar challenges to the law.

"Call 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," wrote Federal Judge Jeffrey Sutton of the U.S. Court of Appeals for the Sixth Circuit, in voting to uphold the constitutionality of the mandate.

Sutton, who was appointed to the bench by George W. Bush , is a former law clerk to Scalia, and he has a sterling reputation among conservatives. He was the first judge nominated by a Republican president to vote in favor of the mandate when a similar case came before him.

Likewise, Laurence H. Silberman, of the US Court of Appeals for the DC Circuit, a long-time friend of Justice Clarence Thomas, wrote, "The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local-or seemingly passive-their individual origins."

Lawyers for the Obama administration mention both opinions frequently in their briefs arguing that the mandate should be upheld.

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