A little before noon on March 23, 2010, President Obama sat at a desk in the East Room of the White House, where—surrounded by Joe Biden, Nancy Pelosi, and Ted Kennedy’s widow, among others—he signed the Patient Protection and Affordable Care Act into law. It was, as Biden memorably told Obama, “a big fucking deal.” Seven minutes later, at the U.S. Courthouse in Pensacola, Florida, thirteen state attorneys general—all but one of them Republicans—filed a lawsuit seeking to overturn Obamacare. It was, as one legal expert told the Pensacola News Journal in the next day’s paper, “a political lawsuit [likely to] be dismissed.” In fact, most papers on March 24 barely reported on the suit’s filing; the New York Times devoted just one sentence to it.
Two years later, that lawsuit—which now includes 26 states, the National Federation of Independent Businesses, and two small-business owners as plaintiffs—sits before the Supreme Court. Next Monday, the Court will begin hearing an extraordinary five and a half hours of oral arguments, held over three days, in The United States Department of Health and Human Services, et al. v. The State of Florida, et al. It is now seen as quite probably the defining case of John Roberts’s expected decades-long tenure as chief justice.
The man most responsible for this change of fate is Paul Clement, a former solicitor general under George W. Bush and the Supreme Court counsel for the state attorneys general. Tea-party politicians, including some of the lawsuit’s plaintiffs, routinely speak of the new health-care law in apocalyptic terms. (“Obamacare is, in fact, the death knell for freedom,” Rick Santorum told an audience in Alabama this month.) But the arguments against Obamacare that Clement makes in his elegantly written brief are substantially less vitriolic. They hinge on the claim that the Commerce Clause in the Constitution, which allows Congress to regulate certain activities, does not allow it to compel commerce in order to regulate it—in this case, by requiring all Americans to purchase health insurance. In political and economic terms, it’s obvious why the individual mandate was built into the health-care act: If insurance agencies are to be required to cover every American, they will need co-payments from healthy customers to subsidize payouts to unhealthy ones. To the supporters of the new law, being forced to buy health care is a low-grade inconvenience at worst and the only way to make the market function. Clement doesn’t necessarily disagree; he simply contests that such a mandatory “subsidy” to the insurance industry is constitutional. If Congress can force Americans to buy health care, he argues, what would stop it from forcing us to purchase, say, American-made cars?
There are two ways to assess a Supreme Court argument. One is to view it as an act of persuasion. You can read Clement’s brief primarily as a letter to Justice Anthony Kennedy, who’ll likely be the deciding vote if the Court overturns Obamacare. Clement quotes Kennedy’s previous opinions throughout his brief, and he leans on broad themes rather than legalistic detail, which is a style that has worked to good effect on the justice in past cases. The other, more cynical way to view a Supreme Court argument is as an act of manipulation—to provide the justices with a plausible rationale for reaching a decision they’re already predisposed to make. If you believe that the Court’s conservative majority is itching to strike down Obamacare, then the task is to launder this decision of partisan motivation. And so Clement argues that there are, in fact, other ways to fix America’s health-care system without an individual mandate; it’s just that Congress chose not to avail itself of those means because they were politically unpopular.
Most legal experts believe that though Clement is facing long odds, they’ve shortened considerably. “Paul truly is the best lawyer of his generation, and if he can’t win the case, no one can,” says Neal Katyal, the former acting solicitor general under Obama. As the Supreme Court lawyer Tom Goldstein puts it, “Paul has turned the health-care fight from kind of a conservative dream that’s untied to reality into a very serious threat to undo the president’s signature accomplishment.” This alone would be a landmark achievement—and, for most lawyers, would have required their complete attention. But health care is just one of seven cases that Clement will be arguing in front of the Supreme Court this term, a caseload previously unheard of for a private attorney. In fact, since leaving the position of solicitor general under Bush, he has become, in the Obama age, a sort of anti–solicitor general—the go-to lawyer for some of the Republican Party’s most significant, and polarizing, legal causes.