For the longest time, supporters of Obamacare in general and the individual mandate in particular have criticized constitutional arguments against the law as unserious. Declares Edwin Chemerinsky, dean and distinguished professor of law at the University of California, Irvine School of Law,

Those opposing health care reform are increasingly relying on an argument that has no legal merit: that the health care reform legislation would be unconstitutional.

That’s changed, as Josh Marshall noted in December.

And with that, the goal posts move. Now the argument is that the recent Federal District Court rulings against the bill will move slowly through the appellate court system, allowing support for the bill to grow. In fact, that’s the government’s strategy at this point, according to the report. Will the stall work? It just might. The report in Bloomberg quotes Sidley Austin attorney Carter Phillips opining on the probability that the Supreme Court will fast track the cases (2 for, 2 against at this point). With certitude that would make Chemerinsky proud, Phillips, who has argued more than 60 cases before the Court, says the chances are “zero.” And why does he say that?

I do not think the court will be inclined to decide this question without the benefit of having the views of at least one and probably more than one court of appeals on a very difficult question of constitutional law. (emphasis mine)

So arguments that once had no merit are now “very difficult question[s].” Wonder what Chemerinsky thinks?