The Supreme Court Justices will conference on November 10 to discuss which Affordable Care Act case(s) they will hear in this term.  Until then, experts are speculating about how the Court will rule on issues such as the individual mandate, severability, and even the Medicaid expansion challenged by Florida and 25 other states.

Today at the Heritage Foundation, panelists Todd Gaziano, Michael Carvin, and David Rivkin, Jr., discussed the lawsuits and the likelihood of a SCOTUS strike-down.

Gaziano summarized his optimism in five bullet points:

  • At least five Justices take the original meaning of the Constitution seriously.  The original text of the Commerce Clause is very limiting, and doesn’t include the “substantial effects” doctrine used by other lower courts to excuse the individual mandate.  See Heller and Citizens United for recent decisions that indicate a concern for the original text.
  • Justices will require a definition of the limit on the federal government’s powers in a world where the mandate stands, and so far defenders of the law have fallen short in defining that.  They’ve relied on arguments like, “But the health care market is unique” or “There’s a moral obligation for the Court to uphold this law that helps so many.”  But they haven’t satisfactorily stated the limit on government power should the mandate stand.
  • Justices (like Kennedy for example) place high value on individual liberty.  See Lawrence v. Texas in which he writes the majority opinion.
  • Justices who value federalism (eh-em, like Kennedy for example) know that an end to limits on the powers of the federal government would be an end to the powers of the state governments.  They could “keep their flags” and state mottos as Rivkin joked today, but would really simply become puppets of the national government.
  • The Supreme Court Justices know that a decision striking down the individual mandate won’t hamper Congress from reaching its stated goal of increasing the number of Americans with health insurance.  There are other (Constitutional) means to this end, and the Court shouldn’t hesitate to strike down a provision of the ACA that has such disastrous potential effects on the Constitution, American federalism, and individual rights.

I felt much more optimistic after hearing these points than before.  Surprisingly, David Rivkin noted at the end of today’s event that ObamaCare is “the best thing” that has happened for Constitutional federalism because it took an extreme overreach of federal government power to cause such a reawakening of states rights advocates, states attorneys general, and the citizenry at large. 

I guess there is always a silver lining, huh?

…And this blog post would be a disappointment if I didn’t tell you what all the wheat and weed from the title was all about.  Like a lot of people who support the challengers of the ACA, I’ve been concerned about Wickard v. Filburn and Gonzales v. Raich (These are two Commerce Clause cases relied upon heavily by the defense).

Well, fear not, friends.  The way the panelists explained it today made it clear that these cases don’t present a problem:  In both instances, plaintiffs recognized that Congress had the power to regulate their activity (growing wheat or growing weed), but were seeking personal exemptions from that regulatory scheme.  Or, as Carvin said, they were already in the market.  These cases are different from Lopez or Morrison, or today’s challenges to the Affordable Care Act, because Lopez and Morrison started with a challenge to Congress’s power to enact certain laws or provisions.  And we know how those turned out.