Health Care Challenges: Supreme Court Decision Expected in Late June


These two judges were sitting on different circuits and hearing similar challenges to the law. They both voted to uphold the constitutionality of the mandate. To supporters of the law, the votes of Judge Jeffrey Sutton of the U.S. Court of Appeals for the Sixth Circuit and Judge Laurence H. Silberman of the U.S. Court of Appeals for the District of Columbia Circuit were crucial, because both men were nominated by Republican presidents and had sterling reputations in conservative circles.

In a concurring opinion Sutton, a former clerk of Justice Antonin Scalia, wrote: "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."

In the opinion for the District of Columbia Circuit, Silberman 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."

Although the Supreme Court is not currently reviewing either case directly, supporters of the law hope that conservative justices might be influenced by Silberman and Sutton.

After Silberman issued his opinion in favor of the mandate, Ian Millhiser, a senior constitutional policy analyst for the liberal Center for American Progress, wrote: "The most powerful line in conservative Judge Laurence Silberman's decision upholding the Affordable Care Act ... is a blunt statement that the law's opponents 'cannot find real support' for their arguments 'in either the text of the Constitution or Supreme Court precedent.'"

At Oral Arguments

In general, coming into oral arguments at the Supreme Court at the end of March, supporters of the law hoped the conservative justices would see things in the same way as Judges Sutton and Silberman. But they were taken aback by the tone of the questions.

"Can you create commerce in order to regulate it?" Justice Anthony Kennedy asked.

"So can the government require you to buy a cell phone?" asked Chief Justice John Roberts.

"Do you think there is a market for burial services?" asked Justice Samuel Alito.

"If the government can do this, what else can it not do?" said Justice Antonin Scalia.

Some legal experts who went into oral arguments believing the mandate would be upheld, came out thinking differently. Long time court watchers know that oral arguments are only part of a process that is mostly dependent on the written briefs, but the conservative justices certainly asked skeptical questions of the government.

The decision is expected to come down by the end of June. After the wild ride, no one can predict the outcome with certainty.

Will Justice Anthony Kennedy, the swing vote on so many cases, once again be the critical vote? If the mandate is struck down, what will happen to the rest of the law? Could oral arguments have represented a head fake, and the conservative justices will vote in favor of the individual mandate?

The cars to the roller coaster are pulling up after a long and dizzying ride and no one is quite sure.

See our infographic on how the Obamacare Supreme Court decision could go.

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