Antonin Scalia

How Will the Supreme Court Rule on Obamacare?

Andrew Sullivan, Richard Epstein, and others place their final bets.


They sit on thrones of alabaster, silent as the deathless gods.

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.

Avik Roy

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.

Devon Herrick 

A few months ago I read a poll of Supreme Court insiders – formers clerks and attorneys who had practiced before the High Court. Their collective vision put the odds of striking down the individual mandate at just below 50 percent; with the chances of striking down the Medicaid expansion at only about 20%. That is consistent my own opinion; and with conversations I've had with attorneys who watch the Supreme Court.

I put the odds of striking down the individual mandate at 50 percent.

I put the odds of striking down the Medicaid expansion at only 20 percent.

I put the odds of striking down the entire law at only about 20 percent.

In the event the individual mandate is struck down, the odds of striking down the remaining (non-Medicaid) insurance regulations is probably 30 percent to 40 percent.

Devon M. Herrick, PhD, is a senior fellow at the National Center for Policy Analysis in Dallas, Texas.

Ilya Somin

I think it's 50-50 whether the mandate gets struck down or not.

If it does get struck down, it will be by 5-4 with the 5 conservative justices in the majority. If it gets upheld, it will be either 5-4 or 6-3, with Kennedy and possibly Roberts joining the 4 liberals.

If it gets struck down, I think it's more likely that the Court will rule that the community rating and preexisting conditions mandate go down with the insurance purchase mandate that they they will rule either that the whole rest of the act stays or that the whole rest of it goes.

I am more confident about points 1 and 2 above then about point 3. Severability doctrine is pretty murky, and I'm not really an expert on it.

Ilya Somin is an associate professor of law and editor of the Supreme Court Economic Review at George Mason University School of Law.

Sally Pipes

I believe the SCOTUS will strike down the whole law. If not, and they only strike down the mandate, people will buy insurance when sick and drop coverage when well. This will push costs up and increase the number of uninsured.

Sally C. Pipes is President and CEO of Pacific Research Institute 

Timothy Sandefur

I am hopeful that the Court will issue a narrow ruling finding that the Individual Mandate goes too far under existing precedent and exceeds Congress' commerce clause power, and that it is not saved by the Necessary and Proper Clause. This latter issue, I believe, will elicit separate opinions from Justices Scalia and Kennedy. If the Court does rule the Mandate unconstitutional, I am reasonably confident that the Court will rule the entire Act unconstitutional, and that this will be done by a larger majority of the justices than the Individual Mandate issue. I believe the Court will then find it unnecessary to rule on the Medicaid question, although some justices might write separate opinions focusing on that issue–in particular, Justice Thomas and Justice Scalia will, I think, write about this issue. And of course I believe the Court will unanimously conclude that the Anti-Injunction Act does not bar its jurisdiction to hear the case. The resulting decision will be interesting and elicit a lot of controversy, but will actually be much narrower in its effect than political leaders will claim, for the reasons Prof. Ilya Somin highlighted on the Volokh Conspiracy recently.

Timothy Sandefur is a Principal Attorney at the Pacific Legal Foundation.

Ilya Shapiro

No justice will hold that the Anti-Injunction Act bars the legal challenge, though the Court will split, possibly in three or more opinions, as to why exactly.

I give 2-1 odds on the Court's striking down the individual mandate – 5-4 on conventional lines, with Justice Kennedy writing the opinion – and then more likely than not that "substantially all" of the rest will fall with it (with Chief Justice Roberts writing the severability opinion for more than just five justices).  By "substantially all," I mean Titles I and II, which cover the laws relating to health insurance policies and Medicaid expansion, respectively, the two big chunks that fundamentally transform the health care system.  That would be a wonderful decision for individual liberty and constitutionalism and allow the next Congress to go back to the health care drawing board and come up with actual market reforms rather than combining the worst elements of socialism and crony capitalism.

If my prediction is correct and Title II falls, then the Court will not need to – and therefore won't – reach the Medicaid expansion/coercion issue.  This issue really gave the Court heartburn at oral argument, so avoiding having to grapple with it may alone sway some justices to go bigger on severability than they might otherwise.

If Kennedy votes to upheld – which ruling would no doubt be based on some quixotic articulation of "health care is unique" – I could see Roberts going with him to depoliticize the decision and, perhaps, control/narrow it.

In short on the key issue, 67 percent 5-4 striking down the mandate, 22% 5-4 upholding it, 11% 6-3 upholding it.

Ilya Shapiro is a Senior Fellow in Constitutional Studies and Editor-in-Chief of the Cato Supreme Court Review at the Cato Institute.

Andrew Sullivan

It will strike down the mandate alone.

Andrew Sullivan is author and editor of The Dish blog at 

NEXT: Can Barack Obama Rewrite Federal Law?

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  1. I’m hoping for a total nullification. Hope with me, guys. Hope with all the power of your souls.

    *Prepares hard liquor in case of disappointment*.

    1. I have hard liquor prepared for either a celbrating victory or drowning my sorrows.

      1. Me too. A bolus dose of whisky, one way or the other.

    2. The high court virtually always rules for corporate interests. Citizens united, the Montana ruling today, availability of low cost migrant workers, the inversion of the commerce clause from beginning to end, the drug war, the recent clean water act ruling, the copyright and copy protection extensions and infringements, allowing the taking of private property for commercial development… they’re quite consistent. Because that’s where the *money* is. As the lawyers say, if you want an answer, just ask, “Who benefits”?

      Obamacare, while in no way resembling the single-payer concept the president was elected with the idea of achieving, is a magnificent gift to the insurance companies and to the medical establishment from congress, across the board from top to bottom and out every supply and support branch.

      That alone tells you how they’re likely to rule, and that’s my bet, right there: Obamacare rolls on. And while the single payer thing would likely have been far better, Obamacare is still better than no care, frankly. We’ve been very 3rd-world about how we treat our citizens. Time to step up to the plate.

      1. I’m right. Again. *yawn*.

        Follow the money, people.

  2. We have souls? Even Epi?

  3. I say mandate goes down 5-4. Kennedy writes an opinion. Thomas writes a better opinion. Then the next Congress strikes the rest of the law with Mittens’ approval.

  4. I’m amazed how everyone seems to be letting SCOTUS have the last word.

    Ya know, this bill can be repealed.

    1. yes, but repeal is a much tougher slog.

      1. Repeal is damn near impossible without the mandate being struck down. It requires a Republican president, House and Senate. It probably even requires a Republican super-majority in the Senate to bypass the filibuster. And all of this must happen before the law is fully implemented. Otherwise a few so-called conservatives will get hooked on this new entitlement and it will become unkillable.

  5. The Court will strike down the mandate 6-3 (along gender lines, assuming Kagan counts as female, which I’m not sure of). It will rule not severable 5-4 (along conservative-liberal lines).

  6. No predictions here. It’s completely and utterly unconstitutional so there shouldn’t even be a freaking argument to be had but that doesn’t comfort me much.

    What they should do and what they will do are somewhat at odds with each other here.

  7. I’ll be Mr. Negative, hoping that I’m wrong:

    Mandate upheld 5-4 in order to save Wickard, etc. Media goes crazy with glee – Obama comeback, Democrats were right, blah blah. Gah, I just made myself feel sick.

    1. What effect would a ruling against necessarily have on Wickard?

      1. Given that the Wickard line of cases gives Congress essentially unlimited power over the economy, there’s almost no way to craft a limiting principle that doesn’t call them into question.

        Now, if it overturns, SCOTUS will likely throw some dicta out there about how its limited to its facts, etc., but any discussion of reasons and principles will be readily applied to other challenges to Commerce Clause regulation.

        1. Wickard was about actual economic activity though. In order to make a similar finding in this case, the court has to reason that failing to participate in economic activity is economic activity, which would be an historic expansion of even the Wickard precedent.

    2. I don’t think anybody considers this a threat to Wickard. I wish it were, but Thomas is probably the only justice who would take down Wickard…

  8. Ruth Badbreath Gasbag tipped us off, 5-4 it’s going down.

  9. What will be the worst outcome for liberty? Because the good money says that’s what will happen.

    1. sadly, this statement has much truth.

    2. I don’t know, but what I do know is that I went out and preemptively bought a 50lb bag of broccoli and if they strike this law down I am fucking stuck with this thing. Anyone wanna buy some broccoli?

      1. Just leave it on the SCOTUS steps.

        1. Don’t you mean FLOTUS? I’m sure she has some great recipes.

          1. There’s enough old bags and vegetables there already.

          2. I think you mean FLATUS

    3. Worst outcome for liberty? Keeping it. Striking down the mandate and as little else as possible would be at least SOME restriction on the govt.

      1. I think striking down the mandate and nothing else is the favored path for leftists to get socialized medicine. The lesson they will take away from the ruling “You can’t make some people buy things” won’t be “Making some people buy things is bad” but rather “Making all people buy things is OK.”

        Keeping the mandate is bad as well, because it opens the door to directing people to buy other things leftists want be funded.

        I honestly think we are in a no-win for liberty, no matter what happens.

        1. Well the government’s involved, so that’s a given.

        2. If they just strike down the mandate, the rest of the machinery goes creaking on. It won’t be repealed by Congress, you can be sure of that.

          And, when the squeeze comes, the mandate will be re-instituted as a tax.

          1. I think the rest would be struck down if Mittens wins and the Republicans can get a majority of the Senate. Without the mandate, they could probably sway a few Democrats by pointing out that the rest of Obamacare will quickly implode the health insurance market.

            I mean, remember how much arm twisting Reid had to do to get all his Democrats in line?

        3. Regarding medical care, it’s been a no-win for liberty for decades. Just try getting medicine without a government-enforced doctor’s prescription.

        4. Liberals don’t like the mandate, or much else Republicans invented.

          1. Haha!

            Isn’t single-payer a mandate?

            Also, how many times do we have to tell you that we aren’t Republicans?

          2. Liberals don’t like the medicare voucher idea either, or much else the Democrats invented.

            1. In Tony’s universe, there are only two groups of people:


              Inbred, secretly-gay, racist militia members

              1. Come now. I’m sure he doesn’t think you’re secretly gay. Just homophobic.

          3. CDN$

  10. Seriously, could Milky Loads have brought less to this discussion? I know he’s not a constitutional scholar, legal analyst, or attorney, but come on, “It will strike down the mandate alone”? That’s all he has to say? By my calculation, that’s about 0.0000041% of the words he has used to detail his spelunking in Sarah Palin’s uterus.

    1. Be gentle. It’s That Time of the Month for him, after all.

  11. I feel good that Epstein is basically saying what I have been saying all along, except for the medicare extension. And I think he is probably right about that.

    1. This court doesn’t have the cojones to strike down a small spider, much less this law.

      1. and cajones are what will matter most. regardless of what many think of the courts politics, their biggest weakness is deference to government.

        1. deference to corporations. Look at the record. It isn’t the government that wins. It’s corporations.

  12. Dude is not making a lot of sense man wow.

  13. Why was Andrew Sullivan included, along with a list of people who are actually knowledgeable about an issue, and who are apparently sane?

    What bodies do HE know about?

    1. Barney Frank’s, for one.

      1. Thanks for that….might just skip dinner now.

  14. I was not aware that Andrew Sullivan was a constitutional law scholar.

    1. Well, since the advent of the Constitutional-Scholar-In-Chief, the bar has been set pretty low.

  15. My guess, the mandate will get struck down. Without the mandate, insurance companies won’t have their freebie to offset the additional cost of the new pre-existing condition regulations. The politicians will ignore this reality and the law will remain on the books, because people like “free” stuff. Insurers will have no choice but to raise premiums dramatically to pay for the resulting gaming. This will be held out as an example of market failure.

  16. I predict 6-3, with SS breaking ranks.

  17. i predict 5-4 with many of the justices admitting they never read the applicable law and have little idea what a “mandate” actually is.

  18. Mandate upheld. Kennedy, after a long hard debate with himself, will conclude that the health insurance market truly is unique and decide to vote with the liberals. Roberts will then panic and decide to join the majority so he can write the opinion to ensure that it is very narrow and so he (and thus his Supreme Court) appear to be less political (especially following Bush v. Gore and Citizens United). Roberts does not want his tenure to be called the “Political Court.”

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  20. Speaking of Warty, is Episiarch crying in his microbrew, too distraught to make an appearance? And where’s Dunphy?! And why in hell haven’t any dogs been executed today? Something’s up, and I don’t like it.

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