Supreme Court

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

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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.