By Root, Damon
Reason , Vol. 44, No. 3
PRESIDENT Barack Obama was all smiles when he signed the Patient Protection and Affordable Care Act (PPACA) into law at a special ceremony in the East Room of the White House on March 23, 2010. "With all the punditry, all of the lobbying, all of the game playing that passes for governing in Washington," Obama declared, "it's been easy at times to doubt our ability to do such a big thing, such a complicated thing."
It turns out there was a much better reason to doubt the federal government's ability to do such a big, complicated thing: the Constitution of the United States of America. Barely two years after the president's health care overhaul was enacted, his solicitor general, Donald Verrilli, stood before the nine justices of the U.S. Supreme Court and tried desperately to salvage the law. When the clock ran out on Verrilli's time, Obama and his supporters faced a challenge they hadn't expected: Their sweeping conception of federal authority had to contend with a robust libertarian legal movement that insisted Congress may not exercise powers the Constitution does not grant.
At issue was a lawsuit originally filed by Florida and 12 other states on the very day Obama signed the PPACA. Although the suit challenged several components of the legislation, its main target was the controversial "requirement to maintain minimum essential coverage." Also known as the "individual mandate," this provision would force all Americans to obtain medical coverage meeting minimum standards set by the government. To justify the health insurance mandate, the PPACA cited the Constitution's Commerce Clause, which authorizes Congress "to regulate commerce ... among the several states." By the time the legal challenge reached the Supreme Court, a total of 26 states had joined it, along with the National Federation of Independent Business and several individuals.
While it might seem inevitable in hindsight that the Supreme Court would weigh in on the constitutional merits of the individual mandate, that outcome was far from preordained. "When the idea for the challenge was created" says Orin Kerr, a conservative George Washington University law professor and former clerk to Supreme Court Justice Anthony Kennedy, "it was understood to be a long shot." The legal challengers faced all sorts of obstacles along the way, including the daunting task of persuading federal courts to plunge into the highly political thicket of health care reform. "We were confident that if we got one ruling against [the law], it would go to the Supreme Court," says Ilya Shapiro, a lawyer and senior fellow at the libertarian Cato Institute, who wrote multiple amicus briefs supporting the challenge and provided early legal advice to Florida and the other state challengers.
Some PPACA supporters didn't think Shapiro and his allies would score even that one victory. Back in October 2009, a reporter asked Rep. Nancy Pelosi (D-Calif.), then the speaker of the House, "Where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?" Her reply: "Are you serious?" Nadeam Elshami, Pelosi's communications director, later amplified the response, telling CNS News, "You can put this on the record: That is not a serious question."
It seemed serious enough to me as I sat in the Supreme Court on March 27, 2012, watching one justice after another grill the solicitor general about the individual mandate's constitutional defects. Verrilli was not taking heat only from the Court's most conservative members; he also faced extremely tough questioning from Justice Kennedy, the right-leaning moderate who often casts the crucial fifth vote in tight cases. "When you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way" Kennedy asked Verrilli as a hushed courtroom looked on, "do you not have a heavy burden of justification to show authorization under the Constitution? …