My health care case prediction: I’m inclined to think we’re going to lose the health care case, based solely on the fact that (1) Scalia was more angry than he should have been in the immigration case and (2) Kagan and Ginsburg have made public statements that are more cheerful than they should have been, in the last two weeks.
Roberts will join the 6-3 majority and write the case to limit the damage in some way although it will be hard, as the Democratic judge on the Eleventh Circuit noted, “This theory affords no limiting principles in which to confine Congress’s enumerated power.” If Roberts relies on the taxing power, I will be quite upset as that is wrong (and I wrote them a brief attempting to convince them so.)
But the reality is that 4 justices, nearly all of the politicians, and much of the American public and don’t take questions of constitutionality on non-enumerated-rights issues to be relevant: all that matters is whether it passed the process or not, which is what the court precedents (wrongly) lay out. So this was an uphill fight to begin with and it’s amazing that it’s seen this much success so far. I’m quite concerned how happily some liberals have embraced the notion of government mandates of purchases of private products without attempting (as the Obama Administration clumsily attempted) to suggest that this is only the case for the health care market and not other things.
My guess is as good as yours; I make no claim to inside information. I also think losing the case will be a net win for Republicans and conservatives in the short term electoral situation but bad for long-term constitutional law. (Vice versa if the mandate is struck down.) If you bet on my prediction, I am not responsible for your loss.
My guess: it will be upheld, and only 2 or 3 will vote to strike down any of it (probably Thomas and Alito, and maybe Roberts; not Scalia, the majoritarian, or Kennedy, the unprincipled waffler). The majority will have to realize that overturning this law will have to have consequences for many existing and possible future federal programs and laws, and they will not want to threaten the underpinnings of their cushy perches.
I do hope I am wrong and that it is overturned. But it is arguably constitutional: the whole thing could be done by a taxing provision, and taxes are sadly constitutional. And the mandate is a tax, whether it’s called one or not. And Sheldon Richman has persuaded me that the IC clause is unfortunately broader than we libertarians would like it to be. The problem is all these years libertarians have either pretended, or actually self-deluded themselves, that the Constitution is such a great thing, quasi-libertarian, and that if we only return to it all would be fine. IN order to find a way to argue for incremental changes towards liberty, we say “just restore the Constitution” and in so doing we buy into the myth that the Founding, the Founders, and the Constitution were great and quasi-libertarian.
It will be a close call, but here are my predictions
Strike down mandate, because Justice Anthony Kennedy will decide that insurance (at least real insurance) always covers risk. Health care not unique. 5 -4; straight conservative liberal split.
Marjority will strike down Title I, which sets up exchanges etc. Too closely integrated. Same vote, same reasons. The liberals will be narrow, and strike down only those provisions that implement the mandate proper.
Medicaid extension: upheld alas. A bone to the left from the right. One of the four liberals will write. It will be a horrendous opinion. Indeed not a single opinion that upheld that extension understood its implications.
I think the pessimists are so used to political defeat that they can’t bring themselves to believe that five justices will vote in the way that their questioning during the oral arguments suggests they’ll vote–which is against the mandate. Of course, Kennedy may have been playing devil’s advocate during questioning and may have since changed his mind, as he is wont to do. But I have no reason to believe that. I think the mandate is going down.
According to Intrade, there is a 72% chance that I’m right.