So far, the most challenged provision of ACA has been the individual mandate. But funny enough, Republicans don't like to talk about how it became a key provision of health care reform in the first place.
Once upon a time, Republicans liked the individual mandate because they thought it promoted "individual responsibility". It was not until President Obama agreed to include an individual mandate in his health care reform package that they all of a sudden embraced the legal argument against federal regulatory authority that had previously only been pushed by fringe libertarian legal thinkers.
And that's what makes this week so odd. Over the weekend, both New York Times Supreme Court expert Linda Greenhouse and Slate Supreme Court watcher Dahlia Lithwick stated the obvious, which is that the legal case for health care reform really is more of a slam dunk than most of the media pundits want us to believe. Despite all the political controversy over "LIBERTY!!!", the "tea party" really has no legitimate legal leg to stand upon when it comes to challenging basic federal regulatory authority.
So I want to unpack the challengers’ Commerce Clause argument for what it is: just words.
Basically just one word, in fact: “unprecedented.” ...
The government argues that, to the contrary, the “uncompensated consumption of health care” by those who are willfully or helplessly uninsured is itself an enormous economic activity. The uninsured don’t exist apart from commerce. To the contrary, their medical care results in some $43 billion of uncovered health care costs annually and, through cost-shifting, adds $1,000 a year to the average cost of a family insurance policy. People who don’t want to buy broccoli or a new car can eat brussels sprouts or take the bus, but those without health insurance are in commerce whether they like it or not.
And here's Lithwick:
Even "Fox News" pundit Juan Williams thinks Chief Justice John Roberts wouldn't want to support an overtly political move to overturn the ACA, since the case against health care is really more political than legal. And as we've discussed before, even a number of CONSERVATIVE legal scholars believe the ACA is wholly constitutional and within Congress' authority to regulate interstate commerce.
Again, this is why the case against "Obamacare" has always been more about the politics than about the law. The legal case really is open-shut, so all the G-O-TEA can do is spew more venom and hope against hope that "The Supremes" put campaign politics above The Constitution. And while this court has been playing with fire lately in reaching some controversial decisions, there's a good probability that even this court suspects overturning the ACA because of partisan politics is simply crossing a bridge too far.