As the nation's highest court takes up one of its highest profile cases in years, UNC School of Law professor Michael Gerhardt expects legal arguments to win the day over politics - and the court to uphold the Affordable Care Act by a vote of at least 5-4. Gerhardt, who is an expert on the Supreme Court and constitutional law, says in recent cases, the court has broadly defined the interstate commerce clause of the Constitution and expects it to follow suit in the health care case.
"I think the court's precedent largely supports what Congress did," says Gerhardt, who is Samuel Ashe Distinguished Professor in Constitutional Law and director of the Center for Law and Government. "In order for the court to strike this law down, it would have to find that the underlying activity — the purchase of health insurance — is not on some level an economic activity."
In an interview prior to the hearing, Gerhardt said Chief Justice John Roberts could join with the 4 more liberal justices in upholding the health care law. "If you look at some prior decisions that occurred of late, Chief Justice Roberts has been in the majority in upholding a broad commerce clause power and that gives you some reason to think he might join this as well," Gerhardt says. Gerhardt said he also believes votes to uphold from Justices Kennedy, Scalia and Alito aren't entirely out of the question.
In response to the the oral arguments over the constitutionality of the Affordable Care Act, Gerhardt says that the biggest shock to him was the weak
performance of the government's lawyers. He said he has been considering a possible, surprising reason for it
. "It is possible that the Obama administration did not
want its lawyers to robustly defend the Affordable Care Act, particularly the
individual mandate," says Gerhardt. "It is possible, in other words, the lawyers do not
mind losing the case."
Gerhardt goes on to say that the President is aware of the controversy surrounding the Act and, thus, it is possible his lawyers were expected to provide a relatively minimal, half-hearted defense, which prevents
the administration from appearing to have embraced the controversial aspects of
the bill whole-heartedly. "The lawyers might have been
daring the Court to invalidate the bill," says Gerhardt. "Indeed, it is possible that the
Court's invalidating the bill would actually work to the President's advantage
in his reelection campaign. He could campaign against the conservatives
on the Court and in Congress devoted to frustrating progressive measures such
as health care reform. He could run against the Court and Congress.
This tact worked well for Franklin Roosevelt, Harry Truman, and Bill
Clinton. And, if the act is upheld, he would be no worse off politically.
It's a theory worth considering, perhaps working better than any other
possible theory to solve the mystery of why the federal government's top
lawyers did not make the strongest and most obvious arguments on behalf of the
constitutionality of the individual mandate."
Below is a clip of Gerhardt's recent remarks just prior to the Supreme Court taking up the health care law. Editor's Note: Gerhardt is available for interviews through the Carolina News Studio. Media should contact studio manager, Rob Holliday, if you would like to include him in your coverage plans when the decision comes down in June.
-March 29, 2012