By Melissa Hart

As I write this, the nine Justices on the Supreme Court are meeting in conference to discuss their votes on the constitutionality of the Affordable Care Act.  No one else will be in the room and most of us won’t know until the end of June what they have decided.  Listening to the pundits this week, we might think we know – from the moment Jeff Toobin referred to Tuesday’s arguments on the Commerce Clause as a “train wreck,” people have been talking as if the Act has already been declared unconstitutional.

I had the opportunity to attend the arguments this week, and it certainly was true that several of the Justices asked questions suggesting hostility to the law.  But I think it is much too early to declare the Affordable Care Act dead.

First, oral arguments are only one part of the process.  Thousands of pages of briefs from the parties and hundreds of amici curiae have been submitted and will be read by the Justices and their clerks.  These briefs present arguments at a level of care and detail that oral argument cannot match.

Second, as the Justices start to write the opinions in the case, they may find that some of the policy points that seemed powerful in the back and forth of oral argument don’t fit with the Commerce Clause analysis.  In fact, many of the questions asked on Tuesday reflected policy concerns that are entirely separate from the constitutional questions in the case.  Justice Samuel Alito, for example, expressed repeated concern about the Act’s effect of “forcing” healthy people to subsidize unhealthy people.  But, as Solicitor General Don Verrilli remarked, the fact that a law involves subsidies does not mean it is not regulation of commerce.

In fact, no one in the courtroom suggested that the markets for health insurance and health care are not commerce.  And I think it Is entirely possible that once the Justices start drafting their opinions, that fact will matter more than the rhetorical flourishes and jabs that the pundits seized on this week.

Melissa Hart is an Associate Professor of Law at the University of Colorado.  Hart has been teaching at CU Law School since 2000 and became the Director of the Byron R. White Center for the Study of American Constitutional Law in 2010. A 1995 graduate of Harvard Law School, she clerked for Judge Guido Calabresi of the Second Circuit and for Justice John Paul Stevens on the United States Supreme Court. Professor Hart practiced law for several years in Washington, D.C., including as a Trial Attorney at the U.S. Department of Justice. She teaches Employment Discrimination, Legal Ethics and Professionalism, Education and the Constitution, Civil Procedure and Supreme Court Decisionmaking.

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