I don’t know what’s going to happen—but I think that knocking over the entire Affordable Care Act is too sweeping an act for a Supreme Court that doesn’t want to be viewed as overly political. This is a case that demands a clear and principled ruling and should delineate the bounds of federal power for decades. It’s a case that law students will read for a century. The court needs to draw a clear line for what is and is not acceptable.
The mandate could stay or go. But I think that knocking over the entire act is too much of an overreach for a court that doesn’t want to look like it’s overreaching. And drawing a principled line where the mandate is impermissible but other ways of using the tax code are permissible is very difficult. Ultimately, I don’t see a terribly sweeping ruling from the court. My guess is that, at most, the court will say, “The mandate is unconstitutional. This is why. Here’s how to fix it.” Or, just as likely, “We’re very worried about he constitutionality of the mandate, so don’t do it again. Or if you do, don’t go any further.”
LTMC: One thing that’s good for people to remember when thinking about the Supreme Court is that tough questioning during oral arguments doesn’t necessarily mean that a justice is going to vote against the law. Quite often the judges are asking the tough questions because they want the litigants to help them respond to objections they know are going to come up when they write their opinions. So, e.g., “Broccoli-mania” might not be dispositive.
That being said, there really is no way to know how the justices are going to vote. If we assume that ginsburg, breyer, kagan and sotomayor will vote in favor of the law, that means that only one of the conservative justices needs to flip. Scalia is in play because of his decision in Gonzales v. Raich, which demonstrated that interstate commerce doesn’t require a transaction to occur “across state lines” to be subject to federal regulation. Roberts is in play because traditionally conservative notions of judicial restraint may move him to exercise precisely that. Kennedy is in play for the same reason. Even Alito is in play based on his dissent in Snyder v. Phelps, where he was willing to circumscribe the 1st Amendment in order to make traditionally “actionable” speech subject to civil remedies. Which suggests that he doesn’t hold individual liberty as a shibboleth that need be clung to in his jurisprudence.
I think Kennedy is actually the least likely to flip because he tends to be in favor of robust notions of individual rights in a “negative liberty” tradition; hence the reason why he voted against anti-sodomy laws in Lawrence v. Texas, and why he voted to force California to release 40,000+ prisoners due to 8th amendment violations in Plata v. Brown, which Scalia panned as “the most radical injunction issued by a court in our nation’s history.” Kennedy is probably more suspicious of laws that burden individual rights from a “negative liberty” standpoint than any of the Conservatives on the Court, and is far more consistent in his jurisprudence on that front.
So it really is up in the air at this point. It only takes one of the Conservative justices to flip to uphold the mandate, but no one can say who that would be. Either way, there’s no question that this is one of the more important supreme court cases since D.C. v. Heller or Citizens United. The decision will fundamentally shape the direction of our nation’s healthcare policy upon its resolution. We’ll just have to wait and see what direction that might be.
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- englishprof said: I’ve increasingly come to this view as well. I predict 9-0 not a tax, 5-4 knock down of the mandate, 6-3 uphold the rest of the act, and 6-3 in favor of the Medicaid expansion. Oddly, of the four, I’m most reticent about the Medicaid expansion vote.
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- doublejack said: What leads you to believe this Court doesn’t want to be viewed as overly political or over-reaching? I’d say at least 3 if not 4 of the 9 (Scalia, Uncle Thomas, Alioto, maybe Roberts) honestly don’t give a fuck how the Court is viewed.
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- jeffmiller said: If Obama cut a deal with the insurance agency—mandate in exchange for preexisting conditions—isn’t it unfair for the government to ax the consideration but required the preexisting condition coverage? Seems like a material breach of the agreement.
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