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Originally published Saturday, June 23, 2012 at 9:00 PM

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The key point health-law allies failed to address upfront

Looking back, Democrats said they had every reason for confidence that the health-care law was constitutional given decades of Supreme Court precedents affirming Congress' authority to regulate interstate commerce; but they underestimated the chances that conservative judges might interpret those precedents differently or discard them.

The New York Times

Questions at issue

What the Supreme Court will decide:

• The most predictable question the court will answer is whether it should even consider the case. There's a technical argument that the legal challenges are premature, but few expect the court will let the historic moment simply fizzle out.

• The court will decide whether two separate provisions of the law survive. One is the famed individual mandate, which requires most adults either to buy insurance or pay a fee that would reach $695 by 2016. The other is a directive that states expand Medicaid coverage, at the risk of otherwise losing federal payments.

• If the court eliminates the individual mandate, justices must decide whether that measure can be severed from the law or the whole law goes down with it.

McClatchy Newspapers

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WASHINGTON — With the Supreme Court set to render judgment on President Obama's health-care law this week, the administration and Congress are in a position that many advocates of the legislation once considered almost unimaginable.

In passing the law two years ago, Democrats entertained little doubt that it was constitutional. The administration held a conference call to say that any legal challenge, as one Obama aide put it, "will eventually fail and shouldn't be given too much credence in the press."

Congress held no hearing on the plan's constitutionality until nearly a year after it was signed into law. Rep. Nancy Pelosi, D-Calif., then House speaker, scoffed when asked what part of the Constitution empowered Congress to force Americans to buy health insurance. "Are you serious?" she asked with disdain. "Are you serious?"

Opponents of the health plan were indeed serious, and so was the Supreme Court, which devoted more time to hearing the case than to any other in decades. An administration that had assumed any challenge would fail now fears that a centerpiece of Obama's presidency may be partly or completely overturned on a theory that it gave little credence. The miscalculation left the administration on the defensive as its legal strategy evolved during the past two years.

"It led to some people taking it too lightly," said a congressional lawyer who like others involved in drafting the law declined to be identified. "It shouldn't strike anybody as a close call," the lawyer added, but "given where we are now, do I wish we had focused even more on this? I guess I would say yes."

Looking back, Democrats said they had every reason for confidence given decades of Supreme Court precedents affirming Congress' authority to regulate interstate commerce; lawyers who defended the law said they had always taken the challenge seriously, even if politicians had not. But they underestimated the chances that conservative judges might interpret those precedents differently or discard them.

Adversaries said the law's proponents had been too attentive to liberal academics who shaped public discussion. "There's very little diversity in the legal academy among law professors," said Randy Barnett, a Georgetown University law professor and leading thinker behind the challenge. "So they're in an echo chamber listening to people who agree with them."

Warnings ignored

David Rivkin Jr., who filed a challenge joined by 26 states, including Washington, said that extended across party lines. "Nobody in Congress is interested in constitutional issues," he said. "The Republicans on the Hill were no better than the Democrats. It really was very late in the game when Republicans realized there would be no policy deal and began to look at the constitutional issues."

Whether a different approach might have changed the outcome remains unclear. With the benefit of hindsight, some advocates said they would have been better off framing the law more explicitly as a tax, although doing so would have been politically explosive.

The Supreme Court may uphold the law, in which case the second-guessing will quickly transform into triumphant told-you-so's. Pelosi, for one, has not retreated. "We're ironclad on the constitutionality of the bill," she told CBS this month. "I think we'll be 6-3 in our favor."

Democrats, and some Republicans, were so sure from the start because the concept of requiring Americans to obtain insurance or pay a penalty had originally been advanced by conservatives to avoid government-run health care. The Constitution authorizes Congress to regulate interstate commerce, but critics of the health law argued that rather than regulate activity, the law regulated inactivity — in other words, the choice of some Americans not to purchase a commercial product.

Democrats who tried to warn their party of that risk were brushed off. When Michael Waldman, president of the Brennan Center for Justice at New York University School of Law, wrote such an article in Newsweek in March 2009, two law professors upbraided him in print.

"It was so absurd a concept that the court would do this," Waldman recalled. "Nobody thought it was unconstitutional until quite recently." Even now, Waldman considers the law "plainly constitutional" based on decades of doctrine. "It's just that you do have this increasingly activist court," he said.

Thomas Perrelli, until recently the associate attorney general, said that the legal team had taken the case seriously and that anyone who had not was misguided. "You had to know this was going to the Supreme Court, and it would be one of the most important cases of the decade," he said.

Changing tactics

The issue came up briefly on the Senate floor when Democrats voted down a constitutional objection by Republicans after a detailed rebuttal by Sen. Patrick Leahy, D-Vermont. Days before final passage, Obama administration and Justice Department lawyers met to map out a defense. The administration assigned a new associate deputy attorney general, Robert Weiner, to coordinate the effort.

The first lawsuits were filed the day Obama signed the plan in March 2010. By the end of January 2011, judges in Florida and Virginia had ruled it unconstitutional. Only then did the Senate and the House hold hearings on the law's constitutionality, and the administration grew worried.

"Once they lost one, two, three rulings, they had to take it more seriously," said Michael Carvin, who represented the National Federation of Independent Business in challenging the law.

As cases moved to appeals courts, Neal Katyal, the acting solicitor general, personally took over rather than wait until they reached the Supreme Court. He decided to speed up the process. The Department of Health and Human Services wanted the matter resolved to prepare for the law's full implementation in 2014, and Katyal dropped procedural objections and asked for quick schedules.

He reformulated strategy, citing the Federalist Papers to argue that the founders saw the commerce clause as a broad tool when states could not solve problems. "The whole goal was to figure out how to talk to conservatives," one participant said.

Katyal also refined the argument to reject the notion that the law improperly forced Americans to buy something. Instead, he contended, it simply regulated how Americans paid for health care that they would invariably consume. Since the uninsured need health care, he argued, the government has the power to force that it be paid for upfront.

Justices inspire worry

The argument sold better in some courts than others. Tough questioning from the U.S. Court of Appeals for the 6th Circuit in Cincinnati led Katyal to call Attorney General Eric Holder to say they had probably lost. But a conservative judge, Jeffrey Sutton, joined a majority upholding the law. In the D.C. Circuit, Judge Laurence Silberman, a conservative, also ruled for it.

A three-judge panel for the 11th Circuit in Atlanta, however, declared the insurance mandate unconstitutional. The administration chose not to ask the full court to rehear the case and appealed directly to the Supreme Court.

Donald Verrilli, who became solicitor general last June, rehearsed in multiple moot-court sessions. But on the critical day of Supreme Court arguments March 27, he momentarily choked on a sip of water and was hammered by justices skeptical of his argument. He gave a rambling answer about the limits of congressional power and had a hard time controlling the discussion as he was peppered with questions. Commentators gave him harsh reviews.

Administration lawyers were more disturbed by what the justices had said. They were disheartened that Justice Antonin Scalia, who had joined a ruling upholding a previous commerce-clause case, seemed so hostile. And Kathryn Ruemmler, the White House counsel, was said to be disturbed that Justice Anthony Kennedy suggested the government had a "heavy burden."

Current and former administration lawyers hold out hope. "I walked out of the court thinking we were going to win, not unanimously," Weiner said. "That was my gut, and I'm sticking with that."

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