If one had listened to the legal academy, outside of Professor Randy Barnett, one would think that the challenge to the Affordable Care Act was not only silly, but frivolous. That is what I repeatedly read over the two years leading up to the Supreme Court’s oral arguments (and even after them). As someone who prior to this case had not studied the Commerce Clause, I found myself thinking that the ACA challenge shouldn’t have been filed because it was a waste of time. I mean how could an overwhelming majority of the legal academy say that the arguments were frivolous if they were in fact not.
That is a question that needs to be answered by those who said such things. But as someone who did not did prejudge the ACA challenge, I can tell you that those who made such claims damaged their credibility, at least with me.
I can remember when I first thought that the ACA was in trouble. It was a month ago at the Federalist Society’s National Student Symposium where Professor Barnett debated Professor Pam Karlan on the merits of the challenge (for her part, Professor Karlan never said the challenge to the ACA was frivolous). I knew the mandate was on perilous ground when Professor Karlan (who is one of the most brilliant people in the profession) couldn’t offer up any sort of limit on the power of Congress to legislate through the Commerce Clause. I remember thinking that if she couldn’t answer the question, then how would the government. Because, as I said, Professor Karlan is generally considered, by more than just me, as one smart cookie.
The next time I realized that the mandate was in serious trouble was when I read the cases and then I read Paul Clement’s brief (one of the very best I’ve ever read). I knew right then that unless the Court bought the idea that there are no limits to the power given under the Commerce Clause, the mandate was in jeopardy. I had no idea the Court would question so forcefully against the mandate at oral arguments, but I suspected that there would be some serious questions that would need to be answered before the Chief Justice, and Justices Kennedy and Alito would be satisfied (I never believed Justices Scalia and Thomas would vote to uphold the mandate).
So it will be interesting to see what the Court does. No matter what happens, I think the biggest losers in the ACA debate are those professors who maintained that the challenge was frivolous, and who continue to say the same thing even after last week’s oral arguments.