On the constitutionality of health care reform.

232 NC Med J May/June 2010, Volume 71, Number 3 On March 23, 2010, President Obama signed into law the Patient Protection and Affordable Care Act (“Patient Protection Act”), promising that it “will set in motion reforms that generations of Americans have fought for and marched for and hungered to see.”1 Minutes later, 14 state Attorneys General sued to prevent implementation of the Act, arguing that it is unconstitutional.a,2 The lawsuits might be considered the most recent chapter in the post-1965 health reform saga, in which intense political battles have stymied efforts to address the nation’s growing health care crisis. As this recent battle leaves Congress and heads to the courts, we are reminded of that famous quote: “The law is what the judge says it is.”b Similarly, the Constitution is what the Supreme Court says it is, or rather, what a majority of Supreme Court Justices says it is. This commentary describes both the Attorneys General claims and the legal framework in which they will be examined, should their claims proceed to a court’s scrutiny. It must be recognized, however, that any legal analysis of a dispute of this magnitude is inherently connected to the political context in which such a dispute arises. Accordingly, policy experts need to understand both the relevant law and the underlying politics, and any constitutional analysis of the Patient Protection Act rests, as a foundational matter, on the ultimate determination of nine Justices. Political Background