Baseball Crank
Covering the Front and Back Pages of the Newspaper
June 27, 2012
LAW: 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.

Posted by Baseball Crank at 10:54 AM | Law 2009-13 | Comments (9) | TrackBack (0)
Comments

I've not paid close attention to any Supreme Court case before this session. But my interest in the Obamacare and Arizona's SB1070 cases led me to follow the oral arguments for those two. Based on reading what pundits are predicting on SCOTUS decisions, I've drawn two conclusions:
1) The pundits offer speculation, and nothing but. Sometimes they fail to qualify their speculation as such, but that's what it is.
2) The Supreme Court and their staff really ought to be running the intelligence services of this country. Nobody keeps things under wraps quite like them.

Posted by: Mark D at June 27, 2012 1:00 PM

Looks like Roberts made the "switch in time to save the nine."

Richard Posner eviscerated Scalia yesterday in Slate; required reading for those still interested in the rule of law, as opposed to attempts by the right to legislate from the bench.

Posted by: Magrooder at June 28, 2012 10:31 AM

Wow - taxing power but not the commerce clause. Can't wait to read that one.

Posted by: MVH at June 28, 2012 10:48 AM

The court's rationale for reaching a constitutional issue it didn't need is that it just felt natural? The excerpt:

"Justice Ginsberg questions the necessity of rejectingthe Government’s commerce power argument, given that §5000A can be upheld under the taxing power. Post, at 37. But the statute reads more naturally as a command to buy insurance than as a tax, and I would uphold it as a command
if the Constitution allowed it. It is only because the Commerce Clause does not authorize such a command that it is necessary to reach the taxing power question. And it is only because we have a duty to construe a statute to save it, if fairly possible, that §5000A can be interpreted as a tax. Without deciding the Commerce Clause question, I would find no basis to adopt such a saving construction."

Posted by: MVH at June 28, 2012 2:05 PM

Here is my prediction on Crank's ultimate take -- Roberts snookered Obama and the left with his Commerce Clause and Medicaid rulings, thereby limiting future congressional authority. So, really, this was a huge win for the right.

Posted by: Magrooder at June 28, 2012 3:01 PM

Neither I nor anybody else I'd been reading right or left predicted that this was going to be upheld as a tax.

Not a huge win, nor a snookering. The Commerce Clause and Medicaid rulings are indeed a big deal legally, but they leave very uncertain what the outer limits of the tax power are. I'm not that happy with Roberts, but I'm mostly in agreement with Erick's cautions about the anger at Roberts.

And of course, this puts the whole Obamacare question straight to the voters, especially in Senate races.

As to Posner and immigration, his big complaint was that Scalia didn't include in his opinion the citations that you can find on page 6 of Kennedy's majority opinion.

Posted by: Crank at June 28, 2012 3:08 PM

I know it's inevitable, but I wince every time a legal decision is characterized in the media as a "win" or "loss" for some politician or political party. The issues in the case were not whether the Affordable Care Act was a good piece of legislation or whether Obama is a good president.

Magrooder - Crank's concerns about the limits of federal power are not driven by political outcomes. I'll also add that there are large numbers of liberals who will cheer this decision yet have no clue about federalism or what was actually decided here.

Posted by: MVH at June 28, 2012 3:48 PM

Crank, wrong on all 3 predictions. You're like a batter facing RA Dickey

Posted by: seth soothsayer at June 28, 2012 8:50 PM

Crank, wrong on all 3 predictions. You're like a batter facing RA Dickey

Posted by: seth soothsayer at June 28, 2012 8:51 PM
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