The case against the Patient Protection and Affordable Care Act (PPACA) — what we often refer to as ObamaCare — is in the books. Members of the Supreme Court will cast their initial votes today than begin their deliberations, issuing their rulings — likely in four parts — at the end of the term in June.
It’s hard to make predictions about which way a majority of the Supreme Court, particularly Justice Anthony Kennedy, is going to go on the individual mandate and severability. But as has been noted by Jim Antle and Stephen Richer, many legal pundits never took the case seriously and now seem out-of-touch due to how close the end result is likely to be, no matter whether liberty prevails or statism hacks away another limited government principle from the Constitution.
Admittedly, I wasn’t going to write any predictions about the case simply because I don’t want to get my hopes up. But over at the National Review, Daniel Foster has given his predictions based on what we read and heard from oral arguments. He believes the Supreme Court will overturn the mandate, but split on severability, which he says will lead to “Chief Justice Roberts ask[ing] one of the liberal justices to write the operative opinion as a way of extending an olive branch.”
So with that, here are my predictions. I really hope I’m not let down, but I wouldn’t be surprised to see the court go the opposite way on severability. I think there is just too much concern in the mind of Justice Kennedy to sign off on the individual mandate.
Today, the Supreme Court will take up perhaps one of the most important cases we’ll see in our lifetime. Over the next three days, members of the nation’s High Court will hear arguments on the constitutionality of the Patient Protection and Affordable Care Act (PPACA), also known as ObamaCare.
While we’ve seen several important cases over the 20 years that have dealt with economic and civil liberties — including property rights, free speech, and habeas corpus, Department of Health and Human Services v. Florida deals directly with the limitations placed on Congress by the Constitution.
The question of whether or not ObamaCare is good policy is meaningless to the Supreme Court. The issue at hand isn’t that law won’t keep health insurance premiums, or because it raises taxes or that it is unpopular with the American public. The only thing that matters, or at least should matter, is the Constitution.
During today’s oral arguments, the Supreme Court will hear an hour of arguments on whether or not legal challenges to the individual mandate are barred by the Anti-Injunction Act. The reason for this question is because the penalities that would be imposed by the individual mandate won’t be in place until 2014. Since no one has been necessarily impacted by the policy, the theory is that the court could punt until it’s implement.
In retrospect, we probably should have seen it coming. After Roberts’ first term, Jeffrey Rosen interviewed the new Chief Justice and wrote a long piece in The Atlantic analyzing his motivations.
Roberts’ stated focus was not his commitment to originalism or his oath to the Constitution, but pulling the Court to the middle to convey unanimity:
“A justice is not like a law professor, who might say, ‘This is my theory … and this is what I’m going to be faithful to and consistent with,’ and in twenty years will look back and say, ‘I had a consistent theory of the First Amendment as applied to a particular area,’” he explained. Instead of nine justices moving in nine separate directions, Roberts said, “it would be good to have a commitment on the part of the Court to acting as a Court, rather than being more concerned about the consistency and coherency of an individual judicial record.”
“You do have to [help people] appreciate, from their own point of view, having the Court acquire more legitimacy, credibility; [show them] that they will benefit, from the shared commitment to unanimity, in a way that they wouldn’t otherwise,” he said. Roberts added that in some ways he considered his situation—overseeing a Court that is evenly divided on important issues—to be ideal. “You do need some fluidity in the middle, [if you are going] to develop a commitment to a different way of deciding things.” In other words, on a divided Court where neither camp can be confident that it will win in the most controversial cases, both sides have an incentive to work toward unanimity, to achieve a kind of bilateral disarmament.
Following the three days of oral arguments over the Patient Protection and Affordable Care Act, I made some predictions on how the Supreme Court would rule on each of the four questions they would consider. But after spending some time reading the vast commentary on the case, I wanted to take another look at the two most pressing questions.
First, my predictions on the specific arguments dealing with the Anti-Injuction Act and Medicaid expansion statues in the law are unchanged. The Supreme Court will almost certainly reject the argument, either unanimously or in an 8 to 1 decision, that the Anti-Injuction Act prevents a challenge until tax provisions in the law kick in.
On the Medicaid statues, I still believe a six-vote majority will reject the challenge brought forward by 26 states that expansion of the government-funded program impedes on their sovereignty. The only way that states will “win” that argument is if the High Court strikes down the law in its entirety.
On the Individual Mandate: I had previously written that the Supreme Court would, in a 5-4 decision, strike down the individual mandate. While I still think that’s the case, I’m much less confident that Justice Anthony Kennedy wasn’t able to create some sort of “limiting principle” on the Commerce Clause. If Kennedy does plan to vote in favor of the mandate, Roberts, who is expected to write the opinion, may indeed join him.
With that said Roberts’ may actually be more of a tip of the cards here since he expressed a lot of doubt about the individual mandate during oral arguments.
If you were hoping that the Supreme Court would punt on a ruling on the controversial health care reform law, the Patient Protection and Affordable Care Act (PPACA), you’re no doubt disappointed in yesterday’s oral arguments. It appears, based on comments from various Justices, that there is no appetite for punting on the issue.
In case you missed it, you can listen to the oral arguments below and read the transcript from the Supreme Court’s website: