June 18, 2012, 2012 -- It's been a wild roller coaster ride. More than two years ago, after a brutal congressional battle, President Obama signed the historic Affordable Care Act. Sometime this month the Supreme Court will decide it's fate.
"After a century of striving, after a year of debate, after a historic vote, health care reform is no longer an unmet promise," Obama said at the time.
During a White House ceremony, Vice President Joe Biden was so swept up in his enthusiasm, that he embraced his boss, and then, unaware of the hot microphones, whispered to the President, "This is a big f**king deal."
Joe Biden had no idea just how big.
Even before the ink was dry, challengers to the law filed lawsuits across the country. Central to their case was the argument that Congress had exceeded its authority in mandating that most every American buy health insurance by 2014. Some federal judges ruled in favor of the law, and others ruled against it, providing highs and lows for both supporters and opponents of the health care law.
The First Challenges
In the early days, even before the law was signed in March 2010, Randy Barnett, a professor at Georgetown law school, was surprised that more people weren't questioning whether the law violated the Constitution.
"No one was paying attention to the law's constitutionality," Barnett said in a recent interview. At the time, he wrote a paper attacking the law that attracted the attention of Republicans in the Senate, but most people dismissed the potential challenges that came as soon as the law was signed.
A turning point occurred in December 2010 when Judge Henry Hudson of the U.S. District Court for the Eastern District of Virginia struck down the individual mandate. He was the first federal judge to strike down any part of the law
"Most legal experts dismissed the arguments as frivolous even after the lawsuits were filed," said Barnett. "Only after District Judge Henry Hudson found the mandate unconstitutional did some skeptics start to take the matter more seriously."
In January 2011, Judge Roger Vinson of the Northern District of Florida went even further. He said the mandate was unconstitutional, and the rest of the law could not survive without it. He struck down the entire law.
Even though other district courts have upheld the mandate, the rulings of Vinson and Hudson energized opponents of the law.
Pam Biondi, Florida's attorney general, had brought the challenge to the Northern District of Florida on behalf of Florida and 25 other states. She spearheaded the hiring of Paul Clement--one of the best appellate lawyers in the country--to argue the case in the 11th Circuit Court of Appeals. Barnett signed on to help represent an independent business group that was also challenging the law. The 11th Circuit would eventually rule to strike down the mandate.
Two Key Judges Rule in Favor of the Mandate
But supporters of the law, disappointed by the rulings of Hudson, Vinson and the 11th Circuit, took great solace in the votes of two other appeals court judges who ruled in favor of the individual mandate.
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.