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My Predictions on the Health Care Case

I follow the Supreme Court fairly closely and, I like to think, intelligently, having participated in briefing a number of cases before the Court. (As usual, my speculation is my own, and not the view of my firm). But I’m as much in the dark as everyone else on how the Court will decide any given case – indeed, the more veteran and expert the Supreme Court practitioner you talk to, the more uncertain they are likely to be in making predictions.

That said, we may as well all make our educated guesses now, while the jury (so to speak) is still out. Here, without much further explanation, I’ll offer mine, all of which will be rendered inoperative in less than 24 hours.

1. It looks as if Chief Justice Roberts will write the main opinion, possibly covering all the issues in the case. Sean Trende and Jack Balkin explain why this is so. If Roberts writes an opinion covering all four issues (bear in mind, there are only four issues in the case if the Court rules in the challengers’ favor on the Anti-Injunction Act and the mandate and severs at least some of the statute), expect a very long opinion and a whole bunch of opinions concurring and dissenting in differently-numbered/lettered subparts.

2. Judging by the arguments, the overall weakness of the Administration’s case, and the simple fact that the whole shebang remains undecided at Term’s end, I’ll be surprised if there are more than one or two votes to declare the mandate a tax that the Court can’t address until 2014 under the Anti-Injunction Act. Court may even be unanimous on that score.

3. Forced to predict, I’ll predict that the Court will strike down the individual mandate, 5-4. I can’t say I’m overwhelmingly confident in that prediction.

4. On severability, I think the most likely outcome is actually that the Court does what the Solicitor General asked in the event the mandate goes down, and throws out only the community rating and guaranteed issue provisions, probably on a 6-3 vote. That may not be an entirely principled compromise, but it at least has the advantage of being endorsed by the Administration, as opposed to leaving the Justices to decide on their own what is and is not integrally related to the mandate.

5. The enormous sleeper in the case is the Medicaid challenge. I could be wrong, but I don’t expect the Court to be willing to rule that Congress exceeded its authority under the Spending Clause here. The bad news for conservatives is that, after years of the Court warning that there are limits to how far Congress could go in using the spending power to indirectly dictate to the states things it cannot directly dictate, the Court would effectively have to concede that it will never tell Congress that it has breached that limit – you simply can’t find a more coercive program than Medicaid, which amounts to a quarter of most state’s budgets and as to which – as the states repeatedly emphasized – Congress did not even offer a Plan B for what happens if a state opts out. I expect a thundering, epic dissent from Justice Scalia on this abdication if that is where we come out.

COMMENTS

  • lineholder

    5-4 taking down the mandate is better than 5-4 supporting it any day.

    I hope you’re wrong on #4. The Obama admin is up to something in their request to throw out the community rating and guaranteed issue provisions if the mandate falls, and I’m not buying their statement that they are concerned about such things as rising health insurance premiums as a basis for making this request either. They have something in mind in their “contingency plan”, and I’d almost bet that getting the community rating and guaranteed issue provisions out of the way will facilitate the success of their plan-B option going forward.

    I just can’t figure out what they have in mind. Any ideas?

    Actually, I’m hoping you’re wrong on #5, too. Throwing out the Medicaid expansion provision would go a lot further in limiting the damage this legislation does than many people realize. The Obama admin is counting on this provision. If it falls, expect to see an even more extreme response from them than what we saw in response to the AZ immigration ruling.

    • ladydoc

      …in his blog post, “The Patient Protection & Affordable Care Act Will Not Help The Poor” at http://ArtCoday.com/issues/blog.html.

      Dr. Coday is one of the rare few doctors in general, private practice who, even today, sees almost exclusively Medicaid & Medicare patients so he has the real-world experience informing his baseline sensible, small government, traditional American conservative views. He explains with clarity and calm why the expansion of Medicaid eligibilty to folks who are less poor will inevitably worsen the lot of the very poor for whom Medicaid was designed.

      Check out his post and other healthcare-related planks on his campaign website above! He’ll be a great primary care physician to have in the Senate as the healthcare system is TRULY overhauled next year.

    • Dave_A

      A mandate-only-struck ruling not only screws with the insurance market (bad for all of us), but it deprives Obama of the ability to campaign on ‘how the meanies in the Court struck down free health-care for college kids’ and so on…

      If he loses the whole law, his plan is to bash the Court on the campaign trail & try to build support for ‘ObamaCare MKII – Single Payer Edition’ (because Single Payer doesn’t require you to buy anything, in the eyes of the Administration, it would still be constitutional if OCare fails)….

      Unfortunately, the damage of a partial-strikedown is far worse than the marginal benefit of some fun we could have at his expense, WRT him being deprived of this ‘opportunity’…

      So we’re left rooting for a total strike-down (which most of us, myself included, were anyway)….

  • APA Guy

    …I’m surprised that you aren’t more confident that the law will be struck down. Here’s why:

    When two compelling cases for differing outcomes are made to the highest court in the land, the performance of the lawyers arguing for and against the law is crucial to the outcome. Even the liberal justices who may be ideologically-sympathetic to the notion of universal health care had to correct the government lawyer apropos whether the cost of not adhering to the individual mandate was a penalty or a tax. That the government couldn’t even clarify its own law was a very telling moment.

    By comparison, the opposition argued masterfully and covered the unconstitutional nature of the law in fantastic detail. There wasn’t a single time during the opposition Q & A that I left the moment thinking a point was lost.

    If I had to predict the outcome, I think this law will be struck down not 5-4, but 6-3. If it DOES result in a 6-3 decision, such a development will be almost as big of a blow to the Obama White House as the decision itself because it will nullify the narrative that a “right-wing” court tossed out the law.

    • checkmate2012

      but have no law degree. I base it on watching the orals and think the SC can’t possibly be expected to decide and weigh the cause and effect of keeping some provisions and not others.

      As for the Medicaid provision, wasn’t it to be paid for by the mandate like the rest of the bill? So if the mandate is struck down how will the states recoup any money? Also I thought Feds threatened to cut off all Medicaid funding including pre-O’care funding levels if the states didn’t play along, which doesn’t seem legal but very coercive.

      The SC gave O a gift on SB107, a horrible gift IMO, so good luck withe O Team saying they’re right wing activist judges.

    • sulmak

      even if it is unanimous.

    • ffc99

      why Dan (a guy who knows a hell of lot more about the SC than you clearly do) wasn’t particularly confident that the ACA would be struck down?

  • davenj1

    and came to same conclusions. Really believe Sotomayor will vote to strike down the mandate making it a 6-3 decision. However, I don’t think Roberts will be the author if Sotomayor breaks ranks; she will be. If 5-4, then most likely Roberts, but would like to see Thomas do it. Also agree, there will be concurring in part/dissenting in part opinions galore here.

  • conservativemusician

    And if we’re lucky, maybe the entire thing gets thrown out. That would be the correct decision and it’s pretty ridiculous that the Dems flimsy arguments can even remotely be considered cogent thought. However, I am glad at least that Boehner has stated emphatically that the House will move forward to repeal the parts of ObamaCare that don’t get struck down by the SC (if they don’t chuck the whole thing). They have a plan of action either way this thing goes down, so I am cautiously optimistic and have been largely discounting AP’s “tea leaves” posts on HotAir. What a downer that guy is!

  • noncon

    Wow.

    However, let’s remember what was promised regarding anti-judicial activism. Romney wrote in the WSJ not that long ago “?Beware of activist judges. The Legislature is our lawmaking body, and it is the Legislature?s job to pass laws.?

    Having the Supreme Court strike down Obamacare would have been nice, but it would have been the liberal way of doing things. Much better to have the legislature do the job of the legislature.

    • ladydoc

      It’s not “liberal” if the Supreme Court does its actual job of correctly interpreting the Constitution.

      • acat

        What do you think the majority opinions got wrong *specifically*?

        Mew

        • ladydoc

          Not going to waste my time trying to point out what has been obvious on its face to many.

      • runner12

        That means he is a Leftist trolling the site, pretending to be conservative. Look at his sig line and more importantly the user name. It is best not to respond to the mobies and trolls.

        • ladydoc

          …heretofore pretending to be conservative.

          • runner12

            That was a good one! Very quick-witted.

  • marktx

    In a very detailed dissenting opinion, justice Kennedy explains why the individual mandate is NOT a tax. Kennedy goes into detail which exposes the faulty legal reasoning of the majority opinion written by Roberts.

    I wonder how Rehnquist would have voted if he were still on the bench ?

    • acat

      They’re just words.

      They’re somewhat useful in trying to figure out how the 9 will decide in the future, but they don’t matter a whit regarding the current case.

      Mew

      • marktx

        n/t

        • acat

          Only the reasoning of those who are in the majority actually matters for the current decision.

          The rest are semi-predictive of future decisions, and sometimes (as with the minority opinion in the AZ SB 1070 issue) they can provide some advice on future cases.

          In this case, the best I can see in Kennedy’s dissent is that he might vote to limit the scope of the power to tax.

          Mew

          • marktx

            Obviously, per this case, the dissenting opinion carries no weight. But Kennedy’s opinion does show that there was no consensus on the issue of the mandate being a tax. In a decision a large as ObamaCare, it would have been far better for the country had the court ruled with a bigger majority, say 7-2, or possibly unanimous.

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