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Neal Katyal on defending Obamacare

at 02:36 PM ET, 03/28/2012

Neal Katyal served as acting solicitor general for the Obama administration from May 2010 through June 2011. During his tenure, he successfully defended the Affordable Care Act in front of the Sixth Circuit Court of Appeals, where Judge Jeffrey Sutton, a George W. Bush appointee, found the law to be constitutional. He also won a 2009 Supreme Court case on the Voting Rights Act, Northwest Austin v. Holder, by an 8-1 vote, after surviving an aggressive questioning by the Justices.

Katyal and I spoke this morning about what we can — and can’t — glean from Supreme Court oral arguments, how the legal challenges against the Affordable Care Act have developed, and why the government cannot require Americans to eat broccoli. What follows is a lightly edited transcript of our discussion.

Sarah Kliff: Tell me a bit about how we’ve seen this case develop. At the very start, these legal challenges to the Affordable Care Act were written off as frivolous. Now, after two days of oral arguments, many think the Supreme Court will strike down the health care law.

Neal Katyal: It’s not surprising that the Court is taking these challenges seriously. They’re going to take any challenge they agree to hear seriously. I think it was predictable that we would see this litigation, since there was even a constitutional point of order raised in the Senate on these issues.

These are arguments that have been in circulation for awhile. I think one of the hardest things about constitutional law is that there aren’t clear answers to questions. There’s some room for discretion on the part of the judges. I think the challengers have done a masterful job at using those discretionary arguments, and blending them with policy concerns, in the lower courts.

SK: What do you think we can glean from the oral arguments that have happened so far?

NK: It’s way too difficult to predict. The experience I had, when I argued the Voting Rights Act in 2009, was there were a lot of people who came out and said we were going to lose. Justice Kennedy was asking really hard questions, and then it was an 8-1 decision written by the Chief Justice. One of the great things about the Court is they ask hard questions about what’s on their mind, and test the logic of each side.

SK: What was that experience like, arguing the Voting Rights Act in front of the Supreme Court? As you mention — and others have written — nearly everyone expected the Obama administration to lose that case, and then you won by a very wide margin.

NK: I felt they had given me a very thorough inquisition on our position. I know it sounds a little hokey, but I’ve always felt very privileged to be in a room where they’re actually asking hard questions, it’s very refreshing to see that.

SK: When you defended the Affordable Care Act in front of the Sixth Circuit Court of Appeals last year, again, there were lots of predictions after oral arguments that you would lose. And, again, you won. Did you think you’d be successful in that case?

NK: I did feel the odds were going to be very tough. Justice [Jeffrey] Sutton did such a masterful job inquiring into every nook and cranky of the argument. So I definitely thought it was going to be tough.

SK: I wanted to go back to something you said earlier, about the opponents of the law doing a “masterful” job with the arguments they used. What do you mean by that?

NK: The constitution is very short. It’s about 3,000 words, so it makes a great outline of what federal power looks like but doesn’t get into the specifics. There’s room to make certain arguments, even if they’re not directly supported within the text of the constitution. I think the challengers have framed this as an issue of individual liberty, and one of the government forcing individuals to buy private products, and I do think that’s very innovative. In 230 years, the Supreme Court has never accepted such an argument. So what they’re doing is asking for a new rule.

SK: What’s different now? Why has the Court agreed to hear an argument that they haven’t accepted in two centuries?

NK: They had to take it up, because the Eleventh Circuit had struck it down. I don’t know how seriously the Court thinks about the challenge, even if it’s ripe or not. So that really remains to be seen. But the fact they took the case was a no-brainer after the government asked them to.

 
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