Professors Unsure about Fate of Obamacare in Supreme Court

As the Supreme Court nears judgment day on the Patient Protection and Affordable Care Act, professors at Harvard and other colleges said that the act was constitutional but were unsure what ruling the nation’s highest court would make by Thursday.

The PPACA, informally called “Obamacare,” would serve as one the largest overhauls of the healthcare system in America. In debating whether the bill would pass or not, professors especially contested how the justices would vote.

“My prediction is that it will be five-four against the constitutionality of the mandate,” said Harvard Law School professor Richard D. Parker.

Parker predicted that Associate Justices Antonin Scalia, Anthony Kennedy, Samuel Alito, Clarence Thomas, and Chief Justice John G. Roberts ’76 would vote against the act. But other scholars, however, were less certain.

“Kennedy is kind of a loose cannon,” said Yale Law School professor Robert A. Burt. “Sometimes he's quite formalistic and sometimes there's something about a case that grabs him about human suffering.”

Law School professor Laurence H. Tribe ’62 said that he expected both Kennedy and Chief Justice Roberts to join the more liberal judges in upholding the constitutionality of the act.

“I expect the Supreme Court to uphold the Obama health care law in its entirety by a vote of 6-3 with Chief Justice Roberts writing for the majority, with a concurring opinion by Justice Kennedy, and with several very angry dissents by Justices Scalia, Thomas, and Alito,” Tribe wrote in an email to the Crimson. “Nobody has a crystal ball, of course, but that’s my best bet.”

Burt agreed that Roberts might vote for the act, if only to write the majority and construe the court’s decision in an extremely narrow sense. He added that though he expected Scalia to vote against the act, it was possible that he would draw upon his own opinion from “Gonzales v. Raich,” where he as part of the majority ruled that the federal government has the right to ban medicinal marijuana even when overriding a state’s decision to legalize it, acknowledging the power of the federal government when regulating commerce.

Many, such as Law School professor Einer R. Elhauge ’82, have argued that a very similar argument can be made to support the constitutionality of the Affordable Care Act. But both Elhauge and Burt said that this outcome was somewhat unlikely.

“Scalia, in particular, made lots of statements that I would say are contrary to his opinion in the medical marijuana case,” Elhauge said.

Other points of debate included whether the entire act or just portions of it would be struck down.

“I think they will uphold the Medicaid limitations,” said Yale Law School professor William N. Eskridge, Jr. “I think there is a good chance—a likely chance—that they will strike down the individual mandate.”

Law School professor Richard Fallon agreed that the individual mandate would be struck down, noting that the fate of the Medicaid limitations depends on the act’s severability—the ability of portions of a law to be enforced if other parts are found illegal or unconstitutional.

Most professors, however, said that they personally believed the act to be constitutional. Even professors who disagreed with portions of the act, such as Yale Law School professor Peter H. Schuck, held this view.

“The Constitution permits government to coerce people in a variety of ways: taxes, the draft, obtaining a passport to travel,” Schuck wrote in an email. In the case of a well-debated and important law, “the Court should only strike it down if the violation is very clear, not where as here invalidation would be a stretch.”

Other scholars, like Parker, were less dismissive of the arguments against Obamacare. Parker said many scholars and pundits had failed to apply legal realism and forgotten that precedents can be changed. According to him, many of the justices see this case as a quickly receding opportunity.

“If they let this go, I don't believe that they will see any foreseeable prospect of stopping federal expansion,” Parker said.

Though Burt more emphatically defended the constitutionality of the act, he similarly acknowledged that the final decision will be made not by scholars, but by the justices.

“The Constitution is what the Supreme Court says it is,” Burt said. “We'll learn on Thursday if [the act] is constitutional.”

—Staff writer Maya Jonas-Silver can be reached at mayajonas-silver@college.harvard.edu.

—Staff writer Petey E. Menz can be reached at menz@college.harvard.edu.