This was originally posted at United Liberty on Friday, March 30th.
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.
Anti-Injuction Act: The Anti-Injuction Act would have prevented any legal challenge from coming forward until the tax penalities that would be applied with the individual mandate were in effect beginning in 2014. This would have allowed the court to punt the case down the road. However, it was pretty clear that members of the court didn’t feel that they were bound to the AIA and would much rather put the controversy to rest. Prediction: 9-0
Individual Mandate: This is a tough one. I believe that, if he would find a so-called “limiting principle,” Kennedy would vote to uphold the mandate. But he came across too skeptical of the expansion of the Commerce Clause that this would require, though he does seem sympathetic to the Obama Administration’s argument that health insurance is a “unique” market. Kennedy votes against the mandate. Chief Justice Roberts’ vote for the mandate was never seriously in play. Prediction: 5-4
Severability: The picture on this question was more clear than on the individual mandate, but Kennedy, who is the swing vote on these two issues, didn’t seem like he wanted to wade through 2,700+ pages of the PPACA to find what elements of it were tied to the mandate. In the end, if the individual mandate goes down, so does the entire PPACA. Prediction: 5-4
Medicaid Expansion: There may have been some sympathy directed towards the 26 states that brought this particular issue forward, but it’s hard to see them ruling in their favor. States have, as Chief Justice Roberts noted, traded some of their sovereignty for federal dollars since the New Deal. While the states are right that this is a substantial burden on their budgets and coercion from the federal government, the court will probably won’t see it that way; at least from the point of coercion. But if the court find that the rest law is no severable from the individual mandate, the expansion of Medicaid becomes moot and the states win anyway. Prediction: 6-3