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A professor at UCLA School of Law, Adam Winkler is the author of Gunfight: The Battle over the Right to Bear Arms in America. For all essays in SCOTUSblog’s symposium on the constitutionality of the Affordable Care Act, click here.

When Justice Samuel Alito began his question to Deputy Solicitor General Malcolm Stewart, the government lawyer surely had no idea that his answer would ensure his defeat in the case at bar — and radically change American elections. The case was Citizens United v. FEC, and Stewart’s task was to defend key provisions of the Bipartisan Campaign Reform Act, the landmark campaign finance law that restricted corporations’ ability to fund electioneering communications in the weeks immediately before an election. Stewart’s basic argument to the Court was that the case law was clear: BCRA’s limits on corporate election advocacy followed established precedent. During the oral argument, Justice Alito asked Stewart if, under Stewart’s view of the doctrine, Congress had the constitutional authority to ban books that included electioneering messages if published by a business corporation. Stewart first tried to avoid the question but eventually gave in. Yes, he said, the government can ban books.

Gotcha! Game over.

When lawyers, professors, and Court-watchers are asked to predict the outcome of a pending case, their answers usually turn on precedent.  Predicting the future is not an easy task; the only thing one can reliably derive from tea leafs is tea. So when asked to opine on how the Court will rule on the Affordable Care Act and its controversial requirement that individuals purchase health insurance, commentators look to prior decisions of the Court and parse through the opinions of potential swing Justices for answers. Previous decisions, however, don’t always provide dependable clues. The law is a game of analogies, and the skilled lawyers who sit on the nation’s highest court could find a way to distinguish anything.

In a number of recent cases, the outcome has arguably been influenced more by how the lawyers answered “gotcha” questions like the one Stewart faced in Citizens United than by the weight of previous decisions. The same may well hold true for the individual mandate.

In United States v. Lopez, the case that sparked the revival of judicially imposed limits on the commerce power,  “gotcha”-type questions again proved pivotal. Solicitor General Drew Days III insisted that the Gun Free School Zones Act, which made possession of a firearm within a certain distance of schools a federal crime, was well within the boundaries of federal power drawn by prior Supreme Court decisions. He wasn’t wrong, but he failed to adequately assure the Justices that his reading of the case law wouldn’t eviscerate all limits on Congress’s power to regulate interstate commerce. Several Justices pushed Days to identify something Congress couldn’t regulate. Days replied that there certainly were limits to Congress’s power but couldn’t point to what they were. And for the first time in over half a century, the Court struck down an act of Congress for exceeding the commerce power.

The exact same question now confronts the government in the ACA case. Opponents of the mandate have scored political and judicial points by arguing that if Congress can force you to buy health insurance, Congress can also force you to buy broccoli, a General Motors car, and a membership at the gym. Although they also argue from doctrine – claiming the Court has never before sanctioned mandated activity under the Commerce Clause – their most powerful argument is about the implications of a ruling in favor of the government. If Congress can do this, what can’t it do?

Some lawyers defending the mandate agree that there really aren’t many, if any, limits on Congress’s power under the existing case law. Even conservatives such as Charles Fried, Orin Kerr, and Robert Pushaw have argued that, under the doctrine as it stands, the mandate is constitutional. Indeed, the case law on the Commerce Clause, the Necessary and Proper Clause, and the General Welfare Clause (relating to the tax power) all lean heavily in favor of upholding the individual mandate. But this, I wish to suggest, misses the question. The “gotcha” question.

Whichever government lawyer is assigned to argue for the constitutionality of the mandate before the Justices is sure to do exactly what Malcolm Stewart and Drew Days did by emphasizing that precedent controls. He or she will argue that previous decisions of the Court indicate that Congress has the ability to regulate health insurance by imposition of a mandate. But will he or she also follow Stewart and Days and fail to articulate meaningful limits on Congress’s power?

For proponents of the ACA, there is cause to be concerned. One searches in vain for a persuasive answer to the “gotcha” question in the briefs filed by the government in the ACA cases winding their way through the federal courts. They all argue that the mandate is well within Congress’s power, while offering few clues as to what are the practical and theoretical limits to that power. Sure one can find a passing comment about Congress not relying on “attenuated reasoning” to support the mandate. Yet it seems as if the government has not figured out precisely what it believes the limits of Congress’s powers to be. Last month, in a hearing in the Sixth Circuit, Judge James Graham asked then-Acting Solicitor General Neal Katyal, “Where, ultimately, is the limit on Congress’ power?” Katyal’s answer was not reassuring. He said that the government absolutely believed that the Constitution imposed some boundaries on federal authority but didn’t offer any detail on what exactly those limits are.  “Where are they?,” Graham responded to Katyal. “I want to find them.”

Judging by the briefing and argument to date, the Obama administration is counting on the weight of precedent and the language used by Justices Scalia and Kennedy in prior cases to point the way to victory. Let me suggest that it might also benefit from thinking about how the failure of the government to offer persuasive, thoughtful answers to “gotcha” questions in cases like Citizens United and Lopez led to surprising defeats. The question will be asked. Proponents of the mandate can only hope the administration will have a good answer.

Recommended Citation: Adam Winkler, Gotcha, SCOTUSblog (Aug. 5, 2011, 9:16 AM),