On the menu

There are many ways to critique or defend the Patient Protection and Affordable Health Care Act (better known as "Obamacare"), but its success or failure depends on its constitutionality. If it cannot withstand judicial review then, despite the social fireworks it ignited, its economic feasibility and social desirability will be irrelevant.

Virginia Attorney General Ken Cuccinelli has filed a lawsuit challenging Obamacare's constitutionality, and a similar lawsuit was jointly filed by the attorneys general or governors of 26 states. Federal Judges Hudson and Vinson ruled on these lawsuits and made headlines by striking down parts or all of the legislation. Their decisions currently await appellate review.

Federal judges take a sometimes baffling approach to deciding such cases. Unlike legislators, they do not decide what Obamacare means for health care quality, lament the numbers of uninsured Americans, or defend small businesses that will be damaged as a result of this legislation. Rather, they ask a deceptively simple question: did Congress have the constitutional authority to legislate Obamacare?

Judge Hudson ruled on Cuccinelli's suit and found the individual mandate provision of the Act, requiring Americans to purchase health insurance or else incur a penalty, exceeded congressional authority. Although he did not strike down the whole Act, he did acknowledge that the individual mandate is necessary for its successful execution.

On the 26-state suit, Judge Vinson also struck down the individual mandate (for reasons almost identical to Hudson's), but insisted that its imperative nature made it non-severable from the Act as a whole, and invalidated Obamacare entirely.

It's very difficult to say, however, where the Supreme Court will go from here. The federal government must draw from "enumerated powers" to act. In the case of Obamacare, Congress claimed authority under the Commerce Clause of Article I, §8, which allows the federal government to regulate commerce among the States.

Supreme Court precedent on the Commerce Clause is a Mary Poppins satchel of possibilities. Advocates on both sides of this litigation can come up with credible arguments supporting their positions based on precedent.

Let's say you are eating a locally-grown pear, and Congress thinks you eat too many pears and wants to regulate your consumption. Can it do so under the Commerce Clause? Although you are eating, not buying or selling the pear, it is something that is likely to move in interstate commerce, so precedent says Congress can regulate. Furthermore, according to other precedents, if everyone ate locally-grown pears, the interstate market for pears would be substantially affected so, yes, Congress can regulate eating pears. Besides, the pear would not exist if had not been pollinated by bees, and the bees might have travelled interstate with the pollen, so there is a sufficient connection between the pear itself and interstate activity to justify regulating your consumption of it (more precedent).

By this reasoning, you might wonder, what ISN'T interstate commerce? Other precedent understands your perplexity. The Supreme Court often reminds us that we cannot interpret the Commerce Clause so expansively that we obliterate any distinction between what is national and what is local. It has also said on occasion that legitimate laws under the commerce clause must target economic activity.

Advocates on both sides have access to an all-you-can-eat buffet of supporting precedent. Predictably, Cuccinelli argues that a private decision NOT to buy healthcare is not economic activity and is patently local on the part of the decider. Also predictably, Obamacare supporters argue there is a nexus between this decision and health care (health care is commercial), and these private decisions in the aggregate would substantially affect the health care market.

In crafting their arguments, both sets of advocates perform a delicate dance, pretending that all the precedent is on their side. Ultimately, Supreme Court justices will issue majority, concurring, partially-concurring, partially-dissenting, and dissenting opinions that vehemently defend the precedent of their choice, and scholars are reading personality tea leaves in an attempt to predict this outcome.

Feeling, like me, a little lost? Write inside your hand, "Congress shall have Power . . . To regulate Commerce . . . among the several States," marvel that all the words fit snugly in your palm, and then wonder, "But what if 'commerce among the states' really meant . . . ?"

Holly Vradenburgh is a student at the University of Virginia School of Law.

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