Supreme Court

Why I'm Cautiously Optimistic That ObamaCare's Mandate Will Be Struck Down


At this point, it's clear that a majority of the public, as well as many legal experts, expect the Supreme Court to strike down ObamaCare's individual mandate to purchase health insurance.

Since the the Supreme Court heard oral arguments about the constitutionality of ObamaCare last March, prediction site Intrade has suggested that there's a better than 50 percent chance that the mandate will be go down in court. In recent weeks, confidence that the high court will rule against the mandate has grown: For roughly the last two weeks, the site has, on average, given better than 70 percent odds that the court will rule against the mandate. At the same time, liberal conventional wisdom, which once scoffed at the possibility that the court might oppose the mandate, has shifted, with many of the law's supporters expecting at least a partial loss in the case. In a recent survey of former Supreme Court clerks, 57 percent said they believed that the mandate would not survive.

So is ObamaCare's mandate toast? Not necessarily. I'm on record as predicting that the mandate will go down, but I also want to caution against overconfidence: The polls tell us only what outsiders suspect the Court will. Intrade tells us about the public mood outside the Supreme Court's chambers, but doesn't actually tell us anything about what's going on inside the court. And as The Washington Post's Sarah Kliff points out, experts don't have a particularly strong record of predicting the outcomes of Supreme Court cases. The only actual information we have about how the nine justices view the merits of the specific arguments in this particular case comes from what was said at the oral arguments in March. Everything else is just speculation, informed mostly by hunches. 

That said, as of today many Supreme Court observers say that because Justice Anthony Kennedy wrote the opinion in the Arizona immigration case, it is a pretty good bet that Chief Justice John Roberts will be the author of the decision. And as Avik Roy points out at Forbes, that's somewhat encouraging given Roberts' comments during oral arguments:

However, after oral argument, it became more clear that Roberts was skeptical of the mandate's constitutionality, and understood that the mandate is really about cross-subsidization, and not personal responsibility. "If I understand the law," Roberts said, "the [insurance] policies that you're requiring people to purchase must contain provision for maternity and newborn care, pediatric services, and substance use treatment. It seems to me that you cannot say that everybody is going to need substance use treatment or pediatric services, and yet that is part of what you require them to purchase…You cannot say that everybody is going to participate in the substance use market and yet you require people to purchase insurance coverage for that."

Roberts was also skeptical that the individual mandate's consequences could only be limited to health care, because health care is somehow constitutionally unique. "I think that would be a very significant intrusion by the Court into Congress's power," Roberts said. "It's good for you in this case to say, 'Oh, it's just [limited to] insurance.' But once we say that there is a market and Congress can require people to participate in it, as some would say—or as you would say, that people are already participating in it—it seems to me that we can't say there are limitations on what Congress can do under its commerce power…all bets are off."

It's true, of course, that on a number of occasions during the arguments Justice Roberts argued with the lawyers making the case that the mandate should be struck down. But as The Examiner's Philip Klein noticed at the time, there was a subtle but important difference between the ways that Roberts presented arguments against the mandate and the way he pushed back against the case that the mandate should be struck down: When Roberts argued against the mandate, he used personal language suggesting he was making the case he believed in; when Roberts defended the mandate, he couched his defenses in distancing language indicating that he was merely presenting someone else's ideas.

On the other hand, it may be the case that Roberts joined an existing five vote majority to uphold the mandate in order to be able to control the majority opinion. But if Roberts is writing an opinion that he believes in, I suspect it will be one that overturns the mandate. Either way, we should know on Thursday morning. 

NEXT: Supreme Court's Immigration Decision Unlikely to Ease Immigrants' Concerns

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. I’m sure the Supremes will fuck this up in a manner to make the issue even more screwed up in the future!

    1. “Every other sentence is null and void.”

      1. I think it would be way more awesome if they made every prime number of words null and void. Way more interesting. The beginning gets really fucked, but as you get further along you think you are all good and then word 2719 comes along and fucks up your law.

        1. And it’ll tie up the courts and lawyers for years as they argue about the precise definition and intent of “word”.

  2. If it dies then I predict it will come back to life in the form of regulation or executive edict.

  3. I’ll be intentionally skipping breakfast Thursday morning, in order to leave that much more room for the sweet, yummy tears of “progressive” dismay.

    1. Suderman is warning you, specifically, about overconfidence!

    2. Alternatively, it leaves you with nothing to throw up but your morning coffee.

  4. Please, please, please strike down the entire law and even the idea that something like this could ever be legal. I hereby sacrifice a fatted calf to the SCOTUS.

    1. you lips to God’s ears.

      1. That’s why I killed the baby cow, to get his attention. This is serious, wrath of God kind of stuff.

        1. It is a good thing I don’t have a son.

        2. I could use some veal rib chops. Was this a burnt offering, or can I sneak out some choice cuts?

        3. I could use some veal rib chops. Was this a burnt offering, or can I sneak out some choice cuts?

          1. Burned everything. Not pulling any of that Greek shit about keeping the choice stuff around.

            1. Mmmm, blackened skirt steak…

              1. Not giving the gods their due in sacrifices is why Greece is having economic troubles. That’s it; look no further for explanations.

                1. Wouldn’t it be fun if the Greeks had some kind of great awakening and went back to being Pagans? They could rebuild the Acropolis. Divide themselves into city states again. Go all out.

                  1. That would be more awesome than allowed by the world’s current subscription to awesomeness. Heck, I’d be willing to send them money if they did that.

                    1. Well, that’s never going to catch on with that mouthful.

                    2. HPR

  5. In addition to striking down the law, I hope we get a well-written supporting opinion out of it with a lot of zingers at the current administration.

    1. And a swipe at their halfwit Solicitor General.

  6. But if Roberts is writing an opinion that he believes in, I suspect it will be one that overturns the mandate. Either way, we should know on Thursday morning.

    I’m chilling the champagne already.

  7. Here is my wild-ass prediction with a zero percent chance of being right:

    Roberts, Scalia, Thomas, Alito, Kennedy vote down mandate. All but Kennedy strike entire law.

    However, Sotomayor, Ginsburg and Breyer join the 4 on the separability issue.

    Thus 5-4 to strike down mandate, and 7-2 to strike down entire law. With Kennedy being a wuss and Kagan going balls out.

    1. just so i follow you, b/c they don’t have the votes to save the mandate the liberals figure kill the whole thing rather than leaving the community rating and guaranteed issue?

        1. You are an insane person…

          Thou I like the imaginary world you live in better then the real one.

          5 to 4 to strike mandate.

          4 to 5 to strike whole law and Kennedy is the switch vote.

    2. My zero percent chance of being right is kind of the flip side of that. 7-2 or 6-3 to strike down the mandate so as to avoid an OMG5-4!!!! response and then 5-4 to strike it all down on the more technical severability issue.

  8. Looking forward to the Justice League movie — I wonder who will be in it?

  9. OK so who comes up with all this crazy stuff.

  10. I also want to caution against overconfidence

    Aw, go ahead, be as overconfident as you want. It won’t change anything.

  11. So do the justices actually write the decision or do their clerks do it?

    1. You’re a state university professor, right?

      1. No, a software engineer.

        1. Damn there are a lot of us.

          1. All the software I use sucks…
            …and i do not have my robot woman yet.

            You people need to get back to work.

  12. Question: if you were a SCOTUS clerk, why wouldn’t you go make a killing on intrade?

    1. The intrade numbers switched at about the time the court would be voting.

      My guess is that Obama knows cuz Keagan told him so his staff is making a bundle…clerks could be in on it as well.

  13. I think using Intrade as an indication of the ruling here is a very bad idea. Intrade is supposed to aggregate the opinions of insiders, experts, and people generally in the know about certain topics. I think it’s on shaky ground when information is tightly controlled–it ends up being an echo chamber. I’d like to see a study of Intrade’s success rate of predictions over there lifespans, also taking into account the estimated sample size of true insiders or experts on any particular subject.

    1. Holy shitsnacks! “There” s/b “their.”

  14. Dhalia Litwick of slate has a piece in BookForum on the forthcoming ruling, concluding that striking down any part of the ACA would be a “return to the Lochner era”…. “where the court struck down laws against child labor….and struck down the minimum wage”

    Im surprised she didn’t also say it was equivilent to reinstituting slavery

  15. I feel like it’s almost Christmas Day! If things turn out right i’m gonna have a turkey dinner.

  16. I’m not sure what the cause for celebration is = a shitty potential government program is being scrapped, so we can celebrate…the existing shitty government program?

    I’ll celebrate when the TSA is disbanded completely.

  17. I’m not at all confident that SCOTUS will overturn anything. Monday’s AZ ruling (not the content, but the force of the argument) has me convinced that it will be 6-3 to uphold the entire law. Obama and the Democrats will be popping the Champagne corks in 10 hours and spiking the football all day tomorrow. Contrary to popular belief, the court has 4 liberals, 3 conservatives, and 2 swing votes.

Please to post comments

Comments are closed.