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.
News broke late last week that the 11th Circuit Court had ruled against the government in Florida v. United States Department of Health and Human Services, one of the many legal challenges to President Obama’s new health care law. In my reporting, I noted that
- The Court disappointed in its treatment of the non-severability issue. In fact, it overturned the lower court’s ruling, which held that, because the law lacked a severability clause, overturning any of the law’s provisions means necessarily an overturning of the entire law.
The Court’s opinion is over 300 pages long — so it’ll take me time I’m not even sure I have to sort out their reasoning on this last part. For now, I’ll simply note that this is a deeply troubling development, and certainly a little rain on the liberty parade.
I also noted Megan McArdle’s prognosis for the health care market (and the federal budget deficit) if we wound up with a mandate-less Obamacare:
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.