Does anyone doubt that if a Republican president had enacted the Affordable Care Act -- with its individual mandate devised by the right-wing Heritage Foundation and with Mitt Romney denouncing "free riders" not paying their share of health care costs -- the U.S. Supreme Court's Republican majority would be lining up to declare it constitutional?
Indeed, if the Heritage Foundation, which did dream up the individual mandate, were submitting supportive friend-of-the-court briefs -- instead of denouncing its own idea -- and if Romney were still deriding those "free riders" who palm off the costs for their emergency health care on others, the odds would be that the Court would vote overwhelmingly for the constitutionality of the health reform law.
After all, the Commerce Clause -- upon which the Affordable Care Act is based -- represents a virtually unlimited authority for Congress to enact laws to regulate interstate commerce, a power which can require individuals and companies to either do something or not do something.
For instance, in a Nov. 8, 2011, legal opinion affirming the constitutionality of the Affordable Care Act, conservative U.S. Appeals Court senior judge Laurence Silberman recognized this legal reality (even though he might not politically like "Obamacare").
Silberman, an appointee of President Ronald Reagan but a serious constitutional scholar, explained how the law -- including its most controversial feature, the individual mandate requiring the purchase of health insurance coverage -- fits with the Commerce Clause.
"We look first to the text of the Constitution," Silberman wrote in his opinion...
"Article I, - 8, cl. 3, states: 'The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.' (Emphasis added by Silberman).
"At the time the Constitution was fashioned, to 'regulate' meant, as it does now, '[t]o adjust by rule or method,' as well as '[t]o direct.' To 'direct,' in turn, included '[t]o prescribe certain measure[s]; to mark out a certain course,' and '[t]o order; to command.'- Advertisement -
"In other words, to 'regulate' can mean to require action, and nothing in the definition appears to limit that power only to those already active in relation to an interstate market. Nor was the term 'commerce' limited to only existing commerce. There is therefore no textual support for appellants' argument...that mandating the purchase of health insurance is unconstitutional."
Silberman's last point bears repeating: There is "no textual support" in the Constitution for people challenging the Affordable Care Act's individual mandate.
So, for "strict constructionists" -- as the Republican justices claim to be -- it would seem to be a simple case. The Constitution grants Congress the power to regulate interstate commerce; health insurance has a substantial impact on interstate commerce; ergo, a legally enacted congressional statute regulating the sale and purchase of health insurance fits within the Constitution.
However, almost no one expects the bloc of five partisan Republicans to abide by their purported principles of judicial restraint and strict construction when the Affordable Care Act is debated before them this week. The reason for that skepticism is the recent history of these justices making a mockery of their judicial philosophies when they collide with GOP partisan needs.
And, even though the individual mandate was initially a conservative Republican idea -- an alternative to Democratic plans that would have required employer-supplied insurance or a single-payer system run by the government -- the GOP and the conservative movement have now turned against their own concept en masse. Not a single Republican voted for "Obamacare."
Therefore, at least some of the five Republicans -- John Roberts, Antonin Scalia, Clarence Thomas, Samuel Alito and Anthony Kennedy -- are expected to find some legal argument that they can use as judicial cover to strike a blow at the Democratic president, Barack Obama.
To do that -- in essence to overturn the legal reasoning of Appeals Court Judge Silberman -- the GOP justices will have to intuit some unstated right in the Constitution on behalf of Americans who simply don't want to buy health insurance.
Such creative legal reasoning is exactly what the right-wing justices typically condemn. After all, the phrase "strict construction" is supposed to mean following the precise language of the Constitution and not "legislating from the bench." But it is already clear that some of the Republican justices, such as Clarence Thomas whose wife is publicly campaigning against the law, will find whatever excuse is necessary to vote no.