How did it happen? Some supporters of the law accuse the Obama administration of failing to control the public debate, which led to a weaker law and ultimately influenced the judiciary.
Supporters of the litigation say their arguments started out strong and gained strength over time as it became clear in court after court that the government's lawyers lacked a credible answer to the fundamental problem of the individual mandate: that giving Congress the power to compel private citizens to purchase products could essentially remove any meaningful limit on its authority.
Fried, for one, didn't buy that logic in 2010 and doesn't put stock in it today. “Bad arguments don't get any better for being repeated, but the political force behind them has accelerated,” he said in a phone interview from Harvard Law School, where he is a professor.
Ilya Shapiro, senior fellow in constitutional studies at the libertarian Cato Institute, said the legal community's skepticism was predictable but wrong.
The legal and academic mainstream “are far-left liberals, and that they wouldn't take seriously the idea that there are judicial limits on Congressional power is not surprising,” Shapiro said. “What was argued to the Supreme Court is really not that different from the initial op-eds and the initial lawsuits that were filed on the reform law.”
Early critics of the reform law included many religious organizations. For example, the conservative Christian Thomas More Law Center in Ann Arbor, Mich., filed a lawsuit against the reform law that went all the way to the 6th U.S. Circuit Court of Appeals in Cincinnati before it was defeated.
Lynchburg, Va.'s Liberty University—which was founded by Baptist Rev. Jerry Falwell and today is run by his son, Chancellor Jerry Falwell Jr.—filed a challenge that went to the 4th U.S. Circuit Court of Appeals in Richmond, Va., before judges tossed it out on procedural grounds.
And several private citizens represented by conservative Christian legal activist Jay Sekulow's law firm, the American Center for Law and Justice, saw their lawsuit get to the U.S. Circuit Court of the District of Columbia—only to receive an opinion that was favorable to the government.
But it was the lawsuit out of Pensacola, Fla., population 52,000, that has shaken the reform law to its girders.
Thirteen states, nearly all run by Republican governors at the time, filed suit in Pensacola alleging claims similar to those in the other suits, chiefly that the individual mandate to buy insurance was an infringement on personal liberty not allowed by the Constitution. The number of state plaintiffs climbed to 26.
The Nashville-based National Federation of Independent Business, looking for an opportunity to enter the fray, surveyed the litigation already in the court system and decided to ask permission to join forces with Florida's lawsuit, then rode it all the way to the Supreme Court.
“We looked around and said, that one would be fine if they would have us,” said Karen Harned, executive director of the NFIB Small Business Legal Center. “A lot of the challengers at the time were, truthfully, more focused on the religious aspect, which isn't really what we're about.”
Some supporters say the White House's failures led to a law more vulnerable to challenge and allowed those attacks to gain traction.
Bob Edgar, a former Congressman from Pennsylvania and the CEO of the not-for-profit Common Cause, blamed the senate's filibuster rules for causing “significant damage” to the law, as well as President Barack Obama's failure to put forward his own proposal for a healthcare law that could have been vetted for constitutional issues.
However, Edgar also said an increasingly partisan judiciary perhaps was primed to be receptive to the extra-judicial political debate, and he noted that partisanship among Supreme Court justices has been increasing in recent years, which he said was a troubling trend given that the court exempts its members from political conflict-of-interest rules. “But give them the benefit of the doubt,” Edgar said. “Maybe they will not want to embarrass themselves by passing judgment” along partisan lines.
Adam Winkler, a professor of constitutional law at UCLA Law School, was among those who blamed the administration for not taking control of a public debate that he believes influenced even the famously insular Supreme Court, as evidenced by the fact that Justice Antonin Scalia asked during oral arguments why the Commerce Clause couldn't also give Congress the power to compel purchases of broccoli.
“Last I checked, the government wasn't requiring anyone to buy broccoli,” Winkler said. “That was part of the public debate.”
