Over three days in late March, the U.S. Supreme Court held its longest oral arguments in 45 years. At issue: The future of the 2009 Patient Protection and Affordable Care Act (ACA), the Obama Administration's signature achievement.
The arguments about ACA, popularly known as Obamacare, encompass a large number of challenges and range over various topics: Is the penalty associated with the individual mandate a tax, and if so are preemptive challenges to the law forbidden? Does the U.S. Constitution give Congress the authority to impose the individual mandate, which would require every American to purchase health insurance? And if it doesn't, could the high court rule out Obamacare's Title I, which includes the individual mandate, but leave the rest of the law in place? And what about the law's massive expansion of Medicaid, which is being challenged as an unconstitutional power grab by the federal government of state tax dollars?
While both supporters and opponents of Obamacare seemed to agree that the administration's solicitor general, Donald Verrilli, bombed during oral arguments, the court's modern jurisprudence still makes it a long shot that the individual mandate will be overturned. Through much of the 20th and 21st centuries, the Supreme Court has upheld an extremely broad definition of the Constitution's interstate commerce clause, ruling that Article 1, Section 8, Clause 3 gives Congress the authority to regulate everything from growing wheat for family consumption to cultivating cannabis for personal pain relief.
There's been plenty of speculation since oral arguments ended on March 28, and sometime in the next week - or even the next few hours - the court will release its decision. Will the Supreme Court endorse Obamacare, throw out just the individual mandate, throw out the entire law, or render some other split decision? Reason asked experts, supporters, and detractors to handicap the decision. Here are their answers:
Richard A. Epstein
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.
Richard Allen Epstein is the Laurence A. Tisch Professor of Law at the New York University School of Law.
They will strike down Title I, and uphold the rest of the law, in a 5-4 decision (along conservative-liberal lines).
It will be on balance a significant victory. We'll need to repeal the rest of the law, of course...
Avik Roy is a Senior Fellow at the Manhattan Institute and author of The Apothecary, the Forbes blog on health-care and entitlement reform. He also serves as an adviser to Mitt Romney on health care issues.