With some 20 constitutional challenges to the massive new health care law pending around the country, two Clinton-appointed U.S. district judges – Norman Moon, of Lynchburg, Virginia, and George Steeh, of Detroit -- have already dismissed their cases and upheld the new law.
But U.S. District Judges Henry Hudson, of Richmond, Virginia, a George W. Bush appointee, and Roger Vinson, of Pensacola, Florida, a Reagan appointee, have rejected motions to dismiss.
If they proceed to strike down the heart of the new law in their final rulings – due this month in Hudson’s case – these rulings will illustrate the growing prevalence of party-line judging in this country.
But they will have zero impact – except as transitory debating points in the political battles still raging in Congress and the states -- if and when the Supreme Court decides the law’s fate.
Nor is it clear that the five Republican-appointed and four Democratic-appointed justices would split along party lines on the so-called "individual mandate" at the heart of the legal battle over health care.
That provision, effective in 2014, would require millions of people either to spend thousands of dollars buying government-approved commercial insurance policies that they don’t want or pay penalties that start low - $95 – but by 2016 rise to at least $695.
The smart money seems to be betting that one or more Republican appointees would join the four liberals, who support virtually unlimited federal regulatory power and would certainly vote to uphold the new law.
Indeed, some liberal Supreme Court experts see the legal challenges as so implausible that they are betting on an 8-1 vote, with only arch-conservative Clarence Thomas in dissent. And some conservative scholars see the new health care law as constitutional even if it’s bad policy.
I see Justices Antonin Scalia and Samuel Alito as fairly likely to hold the new law unconstitutional. But Chief Justice John Roberts and swing-voting Anthony Kennedy are harder to predict. Why so?
First, the central issue – whether Congress can use the commerce clause to force people to buy a commercial product that they don’t want – is utterly novel. Until now, Congress has never regulated inactivity in the name of interstate commerce. Second, the relevant constitutional language is hopelessly ambiguous. And third, with forests of precedents lending some support to each side, there is no clear law to apply.
James Madison wrote in Federalist 45 that “the powers devoted by the proposed constitution to the federal government, are few and defined.” But many precedents since the New Deal have suggested that Congress can do almost anything in the name of regulating interstate commerce, of taxing, or of spending for the general welfare.
Wickard v. Filburn, in 1942, upheld Congress’s power to regulate how much wheat farmers could grow for home use even if they did not sell any. Gonzales v. Raich, in 2005, held that Congress can make it a federal crime for Californians to grow marijuana at home for personal medical use even though allowed by California law.
Raich said it was "necessary and proper" (in the Constitution’s words) for Congress to regulate such local behavior when doing so is "an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated."
Similarly, the Justice Department and others see the individual mandate as "necessary and proper" to finance the subsidies at the core of the health care law.
But since 1995 the justices have held in several cases that however broad, the commerce power is not unlimited. They struck down in 1995 a federal law against possessing a gun near a school and in 2000 a provision of the Violence Against Women Act, both by 5-4 conservative-liberal splits with Kennedy joining the conservatives.
Lawyers for the 20 states and other parties challenging the health care mandate argue that if Congress can force people to buy health insurance, it could also require them to buy health club memberships, three helpings of fruit and vegetables a day, new GM cars, and just about anything else.
With no clear guidance from the precedents, the outcome is likely to turn less on legalities than on the justices’ views of whether the new law is good or bad for the country and whether – even if they think it’s bad, as I suspect Roberts does – they should second-guess the elected branches on the most important new legislation in decades.
The latter calculation might well turn partly on how striking down the new health care law would play in Peoria. If majorities of the public and Congress are clamoring for repeal when the justices are mulling the issue – probably in 2012 or 2013 -- the conservatives could strike it down without fear of a big public backlash.
But would they?