How the Roberts court could save Obama’s health-care reform

March 18, 2012

Washington Post:

From the inaugural oath do-over to an unprecedented State of the Union throwdown, relations between President Obama and the conservative members of the Supreme Court have had an unusually cantankerous feel.

If it had been up to Obama, after all, John G. Roberts Jr. would not have been holding the Bible at the president’s swearing-in, and Samuel A. Alito Jr. would still have been in his New Jersey judicial chambers rather than in the second row of the House mouthing “not true” during Obama’s 2010 address to the nation. As a senator, Obama voted against the Supreme Court confirmations of both men.

But these days, the president must hope that grudges are put aside. He will need at least one Republican-appointed justice on the increasingly conservative court to uphold the signature domestic achievement of his presidency: health-care reform. The court’s four liberals, two appointed by Obama, are forecast as reliable votes in favor. But Obama needs at least five.

In six hours of oral arguments over three days later this month — the most time the court has spent on a case in 45 years — the Obama administration will try to convince the justices that the Constitution grants Congress broad power to regulate interstate commerce and provide for the national interest. Broad enough to require that almost every American purchase health insurance or pay a penalty.

Roberts, who appears less dedicated to federalism than was his predecessor and mentor, William H. Rehnquist, may be “gettable” on such a question. Justice Anthony M. Kennedy, the usual go-to conservative for liberals, is a realistic possibility. Even Justice Antonin Scalia, the court’s most irascible conservative, might be lured aboard. Alito’s past votes make him more of a mystery.

The court’s liberals — Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — are solid on the question of Congress’s broad authority. On the other side, Justice Clarence Thomas has spent his 20 years on the court as a voice for the view that the Constitution mandates a far more limited role for the federal government.

“I think the rest are more or less perceived as being in play,” said Erwin Chemerinsky, the liberal dean of the University of California at Irvine Law School.

Walter Dellinger, a former acting solicitor general and one of the health-care law’s most ardent constitutional cheerleaders, has long predicted that the vote upholding the legislation will be lopsided and that Roberts will be in the majority to write the opinion. (When on the prevailing side, the chief justice writes the opinion or chooses the colleague who gets the job.)

“The reason I think Chief Justice Roberts will write the opinion is because I think he will want to write a narrow opinion,” Dellinger said. It would recognize that there are limits on Congress’s powers, he said, but that the Constitution’s commerce clause is fully met in a law that deals with the “intimately intertwined” issues of health care, insurance and interstate markets.

There is an intangible issue at play as well. Roberts is in a peculiar spot with Obama. When one or both men fumbled the president’s oath of office, it required an embarrassing reenactment. Later, Roberts said it was “very troubling” that Obama criticized the court’s Citizens United v. Federal Election Commission ruling in his 2010 State of the Union address while the justices sat before him.

Roberts is protective of the court’s reputation, however, and sensitive to the perception that its decisions are politicized. A 5 to 4 ruling against the law that put the Republican-appointed justices in the majority and those named by Democrats on the losing side would reinforce the court’s partisan and ideological divide.

A reality check: Dellinger, and others who think the court will uphold the Patient Protection and Affordable Care Act, thought the constitutional challenges to the law were folly that the courts would easily reject.

Instead, as the challenges have proceeded in the lower courts, federal judges have split evenly on whether Congress exceeded its power. At the appellate level, two courts have upheld the law, one said it was unconstitutional, and another said a challenge is premature until the individual mandate — the provision requiring people to buy insurance — actually takes effect in 2014.

Ilya Shapiro, a Supreme Court scholar at the libertarian Cato Institute, said he thinks the chances are greater that the court will vote 5 to 4 to strike only part of the law, the individual mandate, agreeing with 26 states and private groups that decisions about whether to buy health insurance cannot be regulated.

“What Congress is trying to do here is literally unprecedented, as recognized even by the lower courts that ruled for the government,” Cato’s brief to the court says.

It is clear that the Supreme Court has developed a great arc of cases dating back to 1819 recognizing broad powers in the commerce clause, which gives Congress the power to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”….

Read it all.

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