On one hand, Bybee says that it's unlikely these arguments will hold up in court.

"You see plenty of other precedents cutting the other way," he explains, including United States v. Lopez and the Commerce Clause, which gives Congress very broad power to regulate commerce.


"There are decades of precedents in which courts and the Supreme Court allowed Congress to use the powers of tax and spending broadly, so long as it's pursuant of general welfare," Bybee explains.

On the other hand, it's unclear how this lawsuit will play out if it reaches the Supreme Court of the United States.

"The wild card is what the Supreme Court of the United States is going to do," Bybee says. "The membership has changed; it has a more solid conservative majority...in my view, stronger arguments support the legislation, but by the time the Supreme Court hears the case, it's never a matter of what past precedents say, it's what will the current majority do."

Even if the bill is deemed unconstitutional, the Supreme Court isn't faced with "an either-or decision," Bybee says. Because the Court has a lot of control over the ruling, it could rule in favor of some aspects and against others.

"Even if they have the mind to overturn [the bill], the decision can be crafted in broad or narrow terms," he says.

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