Scalia (left) and Roberts may end up voting to uphold the Affordable Care Act, the author says. Can health ruling sink tea party?

Of all the possible outcomes being tossed around as the Affordable Care Act litigation heads for Supreme Court consideration, one is usually overlooked: If the court upholds the act’s constitutionality and its “individual mandate,” it could sound the death knell for the tea party.

The challenges to the mandate are perhaps the most concrete manifestation of the tea party’s vision of the Constitution and the role of government. The tea party has made its name by promoting a constitutional vision of a weak central government, incapable of addressing national issues — like the health care crisis, environmental protection and financial system reform — and this theory is at the heart of the lawsuits challenging the mandate. Progressives have long argued that the tea party’s vision has more to do with the failed Articles of Confederation than our enduring Constitution.


But what if this message were delivered by the conservative Roberts Court in a high-profile defeat for the tea party in the health care litigation?

There is a distinct possibility that the high court could uphold the health care law’s constitutionality, not just with a 5-4 ruling — in which swing-vote Justice Anthony Kennedy sides with the court’s more liberal members — but with the support of conservative heroes, like Justice Antonin Scalia and Chief Justice John Roberts.

After all, Scalia concurred in the 2005 decision, Gonzales v. Raich, in which the court upheld a federal ban on possession of marijuana grown in accordance with local law for personal, medicinal use — because the ban was part of a broader regulation of interstate commerce.

Supporters of health care reform, relying on Raich as well as other legal precedents, have argued that the law is authorized by the Commerce Clause. As U.S. Court of Appeals for the Sixth Circuit Judge Jeffrey S. Sutton—a conservative superstar in his own right—wrote when he upheld the constitutionality of the health care mandate, “if Congress could regulate Angel Raich when she grew marijuana on her property for self-consumption, indeed for self-medication, and if it could do so even when California law prohibited that marijuana from entering any state or national markets, it is difficult to see why Congress may not regulate the 50 million Americans who self-finance their medical care.”

Just this week, the U.S. Court of Appeals for the D.C. Circuit issued a crushing defeat to challengers of the mandate, in an opinion written by Judge Laurence Silberman, a staunch conservative appointed to the bench by Ronald Reagan. That case, Seven-Sky v. Holder, upheld the constitutionality of the act under the Commerce Clause.

The health care law might also pick up conservative support in the Supreme Court beyond the Commerce Clause argument. Another constitutional basis for the law’s individual mandate is that it is a “necessary and proper” means of carrying out Congress’s constitutional power to regulate commerce.

Roberts joined Justice Stephen Breyer’s sweeping opinion last term in United States v. Comstock, which held that the “Necessary and Proper Clause” affords Congress the power to use any “means that is rationally related to the implementation of a constitutionally enumerated power.”

Roberts might not need to go as far to uphold the health care mandate as he did in Comstock — in which the court upheld a federal law providing for civil commitment of certain sex offenders as a means of executing Congress’s implied power to define certain acts as federal crimes, which in turn is derived from Congress’s specifically granted areas of authority.

The legal logic behind the mandate is more direct: The enumerated power in the health care case is the Commerce Clause; the mandate is a “necessary and proper” part of the unquestionably constitutional regulation of the nearly 20 percent of our nation’s economy that is the health care industry.

For Roberts and Scalia, it wouldn’t be that big a leap from Raich and Comstock to upholding health care reform. This isn’t to say they would have to like the law as a matter of policy.

Indeed, Sutton, while voting to uphold the constitutionality of the mandate in the court of appeals, made pretty clear that while he thought the law was plainly constitutional, he wasn’t necessarily crazy about it as a matter of policy.

Nonetheless, a rejection of the tea party’s basic constitutional vision by the Supreme Court—especially if a ruling upholding the mandate were joined by conservatives like Scalia and Roberts—would strike a major blow to tea partiers’ ability to have their constitutional theories taken seriously by the American public.

So, it could be the tea partiers’ favorite justices who finally tell them the party’s over.

Elizabeth B. Wydra is the chief counsel of the Constitutional Accountability Center.