Call it the war of the constitutional scholars.
At issue is the constitutionality of the Obama administration's health care law, specifically a provision called the "individual mandate" that requires individuals to buy health insurance by 2014 or pay a penalty.
On one side you have the constitutional-scholar-in-chief, President Obama, who says that Congress, through its power to tax and regulate interstate commerce, was well within its authority to pass the law in 2010. Last week more than 100 law professors released a statement saying, "Congress's power to regulate the national healthcare market is unambiguous."
But across the battlefield, opponents of the law are focused on the scope of federal power. They contend that Congress had no right to require individuals to enter a marketplace and buy a particular good or service. "If this mandate is not struck down," says Georgetown law professor Randy Barnett, "we will no longer be citizens, we will be subjects. The federal government will be able to command citizens to do anything short of violating a fundamental right."
Barnett admits the majority of his colleagues disagree with his position, but says that the consensus will shift as the legal challenges mature and the political debate continues.
Currently federal judges across the country are hearing challenges to the law from 28 states and private parties. Two federal judges have upheld the law, while another in Virginia struck down the individual mandate. In the coming days a major decision is expected from US District Court Judge Roger Vinson in Florida that could balance out the score card. In court proceedings Vinson seemed skeptical of some of the administration's positions.
Both sides have vowed to take their appeals all the way to the Supreme Court and, court watchers are already trying to read the tea leaves of past decisions hoping to divine how the justices will rule.
"Ultimately, the Supreme Court will have to decide the case " says Bradley Joondeph of Santa Clara University who has not taken a position on the constitutionality of the law.
"The lower court decisions matter" he says "because they can affect the political discourse surrounding the law and can also affect the perceived legitimacy of the constitutional arguments. The more judges that strike down the individual mandate, the more likely that argument is to gain traction ultimately at the Supreme Court. "
The administration 's central authority points to the Commerce Clause of the Constitution, which gives Congress the power to regulate interstate commerce. Lawyers for the Obama administration outline the astronomical costs of the uninsured, which, they argue in court papers, "shift $43 billion in the cost of their care annually to other market participants, including providers, insurers, and the insured population."
"We are talking about the regulation of a $2 trillion industry," says University of North Carolina law professor Bill Marshall, who supports the law. "The argument that the federal government cannot regulate what is one of the most important aspects of interstate commerce in this country is considerable and could be devastating, to not just health care, but other kinds of government regulation as well."