Yet the grounds for the constitutional assault, ironically, stem from the Act’s conservatism, not its radicalism. If Congress had voted to provide every American with health care through a national health service, that new law would be safe from constitutional challenge. As would be laws that provide tax-supported health insurance to everyone by levying a special tax on businesses that provide no insurance to their workers, or even larding a special excise tax onto fattening foods.

It has long been understood that the power to tax and spend—enumerated in Article I of the Constitution—lies largely with Congress: it decides what to tax and how to spend the revenue. To be sure, those powers are limited, but the limits come from other constitutional provisions—for example, the First Amendment would prohibit Congress from imposing a special tax on atheists or providing better benefits to registered Republicans—and, most importantly, from our democratic system, which gives voters the power to eject from office those representatives who support objectionable policies.

So what is the constitutional problem with the Act? The Act’s “individual mandate” requires most Americans to buy qualifying health-care coverage if they don’t receive it either from the government (such as through Medicaid and Medicare) or their employers. Starting in 2014 those who flout the requirement will face a small tax penalty.

A few people—including every Republican state attorney general and a few Republican governors—have sued, claiming that the individual mandate exceeds Congress’s power under the Commerce Clause of Article I, which gives Congress the power to “regulate Commerce . . . among the several States.” Although the nineteenth-century Supreme Court drew a sharp line between commerce and other aspects of the economy—such as agriculture and manufacturing—by the mid-twentieth century, the Court had recognized reality.

This excerpt is from the current issue of Boston Review. To read the full essay, go to:http://www.bostonreview.net/BR36.2/pamela_s_karlan_obamacare.php

• Watch the discussion.

1.Does the Anti-Injunction Act keep the Court from deciding the constitutionality of the individual mandate until the various penalties imposed by various parts the Act are actually imposed (probably in 2014)?
2.Is the “individual mandate” within the powers the Constitution confers on the Congress?
3.Does the Act’s required expansions of State Medicaid programs violate the Constitution? and
4.If some provisions of the Act are unconstitutional, are those provisions “severable,” allowing the rest of the Act to go into effect, or “inseverable,” forcing the whole legislation to fall?

I will be commenting briefly on the arguments each day. I should note, though, that oral argument is a very uncertain guide to the how the Court, or even its members, will vote. Some justices never say anything at oral argument (Justice Thomas last asked a question more than six years ago), some like to play devil’s advocate, and (more fundamentally) Justices views can evolve as the arguments proceed and as the draft opinions are written, and re-written, and re-written. So, take all predictions of the Court’s ultimate conclusions that are based on oral argument with a teaspoon of salt. (Take all predictions based on other ground with at least as much salt.)

The Court heard argument today on the first issue. The Anti-Injunction Act, passed in the 1860s, requires parties complaining of federal taxes to wait until the taxes are actually assessed before suing about them. One of the lower federal courts (the Fourth Circuit) held that this act deprived it of jurisdiction to decide the Act’s constitutionality (though that didn’t prevent two of the three judges from giving us their thoughts – one for, one against).

It has seemed to many of us that the Court is unlikely to dismiss these cases under the Anti-Injunction. It did not have to reach to take this court session and could have waited to schedule for argument in the fall – and for decision until after the election. No one – I think that’s literally true – wants to wait several more years to know whether this Act is constitutional. Actually, it is literally true of the parties. All the parties, the opponents of the Act and the Government, supporting it, argued that the Court has jurisdiction to hear and decide the case. The Court had to appoint an outsider as a “friend of the Court” (amicus curiae) to argue that the Anti-Injunction Act deprived it or jurisdiction. Happily for the Court, there are plenty of ways around the Anti-Injunction Act in this case in the event it doesn’t want to pull (warning: dated popular culture reference, Saturday Night Live ca. 1977) an Emily Litella and dismiss the cases, saying “Oh, never mind!”

One footnote here – the Anti-Injunction Act would only apply to the individual mandate part of the cases before the Court. The requirement that states that want to have a Medicaid program (all of them, at least right now) expand their programs does not involve a tax (or a penalty) and clearly does not fall within the Anti-Injunction Act.

The tea leaves from today’s oral argument are certainly consistent with the idea that the Court is not about to dismiss the individual mandate claims in the cases as barred by the Anti-Injunction Act. There is a lot of “inside baseball” about how the Court might get around it, but, for those of you who are not interested in the intricacies of federal appellate jurisdiction, the bottom line is that some Justices expressed interest in at least three different ways of avoid the Anti-Injunction Act.

It is still possible that when the Court comes to vote on the case – and as the Justices come to write and argue about various opinions in the case – that it seems to five Justices that dismissing the cases for lack of jurisdiction is the “least bad” way for them to proceed. But I think that’s unlikely – it would require there to be a real mess in the Justices’ approaches to the merits of the case . . . to which they turn tomorrow.
(This is one of several posts about oral arguments before the Supreme Court on the Affordable Care Act. These posts were commissioned by, and first appeared on, Stanford Medical School’s Scope blog. To read more, go to http://blogs.law.stanford.edu/lawandbiosciences/2012/03/27/the-supreme-court-on-health-reform-day-one/

Two years would, indeed, be better than three … if we continued to offer nothing more or different. Better still, however, is to use the three years more effectively, by teaching additional skills that our students need and that can be learned better in school than on the job.

We thus re-envisioned our program—beginning with the insight that the first year is less about preparing someone to be a lawyer than it is about preparing them to be a law student. It lays the essential foundation, leaving two years to prepare students for the careers they will embark upon after graduation.

Traditional law classes obviously remain an important part of this upper level program: Students must still refine their analytical skills, and there are other fields of law they want and need to study. But rather than exhaust their time (and patience) this way, we made critical changes that enrich what they can do.

First, we now provide resources (and encouragement) to help students decide what kind of lawyers they want to be. Gone are the days when students could be told—as I was told—that it doesn’t matter what classes you take, that you can decide the practice you want later, after you begin working. Certainly no other professional school would dream of advising students thus, and it’s grossly irresponsible today, when firms no longer allow young lawyers to wander freely among practice groups, and clients are unwilling to subsidize their basic training. So we work to help students find a career path from the day they arrive, using a combination of technology (including online tools we developed named SLSConnect and SLSNavigator), formal professional advising, alumni networks, and more.

The second change is to get beyond just teaching students how to think like a lawyer by teaching them how to think like their clients as well. Lawyers say they are problem solvers, but traditional legal education teaches law students only how to spot problems; it does nothing to teach about solving them. Nor is problem-solving a generic skill that can be taught in a single course or in the interstices of analyzing cases in traditional Socratic classes. Problem solving must be a pervasive element in the curriculum, tailored to the kinds of problems new lawyers will actually face—a change we addressed through a series of overlapping reforms. We integrated the law school into the larger university, gaining our students access to Stanford University’s other superb professional schools, and encouraging students from these schools to take classes at the law school. Students interested in becoming business lawyers can learn how their future clients address problems by taking classes with them at the business school, aspiring IP lawyers can learn about technology from engineers, environmental lawyers can learn how those who specialize in earth sciences think about policy, and so on.

To make this a reality, we modified our calendar to match that of the university and created nearly 30 new joint degree programs (almost all of which can be completed in three years). We added an array of new classes that put students from different disciplines together in teams and give them simulated or actual problems to solve. Nor does our program end in the classroom. It encompasses our research centers, academic journals, and student organizations. It includes even where students live, and we constructed a residential complex in which law students live, eat, work, and socialize with graduate students from other disciplines. The environment is one in which different ways of thinking about problems suffuse the students’ experience.

A third change involves greatly expanded clinical training. Having diversified what students learn in the classroom environment, we teach them how to deploy that knowledge in context—with actual clients, in the messiness of real life representation. Clinics offer more than the nuts and bolts of practice, what forms to file or how to fill them out. They teach students to be reflective lawyers: how to understand the nature of the choices they make as lawyers, and how to learn from their experience. And while many or most law schools now offer clinics, ours are unique in a number of ways, the most important being the idea of a clinical rotation—based on the medical school model—in which students work full time in the clinic during the term, with no competing courses or exams to distract from the focused training.

We also enriched the international and global aspects of our program and enhanced incentives and opportunities for public service and public interest work. We are presently developing new models for student research, designed to get beyond the traditional seminar paper by having students instead work on important public policy problems for government and other organizations. We made many other changes as well, too many to discuss in a short column. But it’s the cumulative effect of all these reforms that really matters. Taken together, they create a comprehensive whole that makes for a qualitatively different law school education and experience.
To read the full piece, go to http://www.abajournal.com/legalrebels/article/stanford_law_school_dean_larry_kramer/

• Read about Petersilia’s Stanford Law School course on and student’s research into prison realignment