With 26 states challenging the president’s signature piece of legislation, it is not inappropriate for the Supreme Court to schedule six hours of argument to ensure all points are thoroughly considered and vetted, given the complexities of the statute and the number of claims made against it. But the strength of the challenges do not justify the length of the argument. The Constitution’s text and history, as well as Supreme Court precedent from the founding to the present, clearly support Congress’s authority to pass the Affordable Care Act, including its “individual mandate.”
Two conservative court of appeals judges provided compelling, conservative arguments for the mandate’s constitutionality.
While the Roberts court has not hesitated to reach broadly when it could have gone narrow — see Citizens United — the justices are undoubtedly aware that the eyes of the American public are upon them. Conservative justices like John Roberts and Antonin Scalia and the swing voter Anthony Kennedy will find it difficult to avoid the force of opinions supporting federal power that they either wrote or joined — even if they might be politically, privately opposed to the health care reform law.
The groundwork has been laid for conservative jurists to uphold the mandate. Two conservative court of appeals judges — the George W. Bush appointee Jeffrey Sutton from the Sixth Circuit and the Ronald Reagan appointee Laurence Silberman from the D.C. Circuit — provided compelling, conservative arguments for the mandate’s constitutionality.
Each justice on the high court, whether liberal or conservative, has pledged fidelity to the Constitution. Indeed, the conservative justices claim to be strict “umpires” for the text and history of the Constitution. As Judge Silberman concluded in his ruling for the D.C. Circuit, there is no support in the text of the Constitution for the challenges to the mandate. No matter how many innings in the game, eventually opponents of the Affordable Care Act should strike out before the Supreme Court.