Rule of Law

How the Health Case Went Mainstream

By Josh Gerstein

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.”


Hudson’s ruling striking down the law got huge press coverage — to the chagrin of Obama administration officials, a lot more attention than two earlier rulings from judges who upheld the law. Similarly, the first federal appeals court ruling against the law — the 11th Circuit’s decision in August 2011 — produced huge headlines, even as the 6th Circuit’s and D.C. Circuit’s decisions in favor of the law drew less notice.

Talk that the law is unconstitutional also has grown stronger in the public eye because the administration’s defense of Obama’s signature legislative achievement has been lackluster outside the courts. Officials have cranked out blog posts and op-eds highlighting popular aspects of the legislation, but Obama rarely raises the subject during public events, and instead focuses on jobs and the economy.


Vice President Joe Biden delivered a speech Friday on health insurance — but said virtually nothing about the health law and concentrated on arguing that Republicans pose a threat to Medicare.

On Tuesday, when the justices will hear key arguments against the mandate, Obama will be on Air Force One, returning from an international nuclear summit in South Korea.

The GOP presidential candidates, by contrast, have pilloried the mandate during speeches and nationally televised debates, calling for a repeal of the health care law.

Mitt Romney declared that it’s “wrong for health care. It’s wrong for the American people. It’s unconstitutional.” Newt Gingrich labeled it “clearly unconstitutional.” And Rick Santorum said that “people in the White House … think this is a normal course to run over the Constitution to do whatever they want to do.”

Still, the legal campaign against the law has hit some bumps. When conservatives such as 6th Circuit Judge Jeffrey Sutton, a former clerk to Justice Antonin Scalia, and D.C. Circuit Judge Laurence Silberman voted to uphold the law, legal scholars took notice — and many felt the drive to undo the law lost steam.

“I actually think the legal challenges hit a high point early on … and have since waned,” said Pam Karlan, a Stanford law professor who contends the law is constitutional.

Kerr said last week that he’d slide his prediction of a 1 percent chance of success for the challengers to about 10 percent now.

“It became kind of a political cause on the Republican side. … Over time, arguments that were initially thought to be kind of off-the-wall have become politically mainstream,” Kerr said. “That has really changed the ground underlying the case. It is still an uphill battle.”

Fried said in an interview last week that he’s standing by his offer to eat his hat if the law gets overturned. But he wasn’t sounding quite so confident.

“I don’t think legal academics, left, right or center, think the argument has gotten any better, but in terms of the possibility of what might happen, I do think people are perhaps thinking” that the lower-court rulings suggest the challengers have a chance, Fried said.

Another prominent legal figure who dismissed the legal arguments against the law at the outset said last week he remains unimpressed.

“You know how they say, ‘People were saying it’s frivolous, and they’re not saying that anymore’?” Walter Dellinger, an acting solicitor general in the Clinton administration, asked in an interview. “Well, I’m still saying it’s frivolous.”