The experts’ consensus seems to be “oh, no, they’re gonna strike it down”. Of course, right before the arguments the experts’ prediction was “nah, they will uphold it, it’s in the bag”. Shows how much the “experts”’ opinion is worth.
I’m no constitutional scholar, but it seems that it may be unconstitutional as worded.
I wish it were likely that a better version of the bill that guaranteed public healthcare were passed instead.
In either case, the consensus was basically, “Slightly more than half of the nation’s pre-eminent constitutional jurists will consider this to be constitutional.” Now according to your understanding of the consensus, it’s going the other way. Big deal.
I mean, it is a big deal, but at this point it isn’t really about the constitution–it’s about trying to read the minds of these jurists.
Which was never my point. My point is that you (and you are hardly alone) seem to be making predictions on the ruling based on oral arguments, which, it appears, is not necessarily a reliable method.
I used to think that the law was Constitutional and would easily survive this challenge. Over the last couple of weeks I’ve been reading a lot of analyses which are really leading me to believe that it looks like Congress really did pass an un-Constitutional law. Some analyses I’ve heard on NPR have been telling, where even proponents of the law are hedging with “well…I guess we’ll have to wait and see…” I’m seeing a 5-4 striking down.
I’d be somewhat surprised, but since in the last couple of years I have seen a couple of SC decisions that were actually (maybe accidentally) based on the Constitution and not on just “greater good”, who knows, it could happen. It would be a huge blow to the commerce clause though.
Forgive my ignorance, I’m hardly an expert, but doesn’t the existence of Medicare privide a precedent for a Federal health insurance mandate? People have no choice but to pay for Medicare, after all.
Ha! Fat chance 
I think the idea is that it’s not okay for Congress to require one citizen to purchase something from another citizen, but it is okay for Congress to require a citizen to pay taxes, which Congress may then use as it sees fit. Paying taxes, in other words, isn’t commerce.
But why did Congress set the individual mandate up like this in the first place? 
Why not just impose a “Medicare tax” on everyone then waive that tax for everyone who purchased private health insurance? That raises alot fewer constitutional questions than this set up.
Hmm, I’ve reached the exact opposite conclusion. I’ve only read a handful of supreme court decisions (including dissenting opinions, if present), maybe 30 or so, but I’ve been struck at how well they illustrate the ideas they find relevant. There’s definitely cases that irritate the shit out of me, Caballes in particular is my favorite hobby horse, but not because I think the justices were capricious in their reasoning.
The government, tomorrow, could ban all food imports, “forcing” me to buy American food, could it not? The government could, instead, impose a massive tariff on all imported foods, effectively forcing me to buy American food or pay a stiff penalty, could it not? If it subsidizes corn to the exclusion of wheat—there’s only so much farmland—then is it not imposing a fine on wheat consumption? Effectively it is. You can cast a lot of government activity in this light. I’m not entirely sure it crosses a new line in this law under review. If the line was crossed, it was crossed long ago. I disagree with Kennedy’s line of questioning that this represents some substantial change. We can ban marijuana; can we ban non-insurance payments for health care?
The Democrats did not want to fund the bill by implementing new taxes, as they did not want to give the republicans more ammo for talking points that could sway popular opinion for the bill against them. The bill that passed was not what either party really wanted, but the mandate had to be included to pay for the bill since the Dems did not want to be seen as directly raising taxes.
To the OP, I will say this. I am not American but I am a lawyer and I have experience of Courtroom advocacy. I will say that it is very dangerous to presume what a judge will rule based upon the questions asked during oral arguments.
Note that car insurance is not required because you exist, it is a requirement because you use public roads with a car, which is a privilege.
Do not use this point to assume I stand either way on this subject, I am just pointing out the difference.
That’s what it is. Whether they used those exact words or not, it’s the exact same effect. It’s absurd to claim that one law might be constitutional and another not despite them having the exact same effect: It’s reasoning like that that leads you to the income-tax deniers.
But, as I said, for the great majority of us, car ownership is a requirement. There’d be no way for most of us to live without one.
Your proposal has the word “Medicare” in it. This gives it even less of a chance of passing than it already had.
Would any of the SDMB lawyers like to opine on the solicitor general’s performance?
The consensus I read in the media, and my own impression on reading/hearing excerpts, was that he did an awful job of making his case, and was unprepared to answer questions that he had to know were coming. I was stunned that he made no effort to even try and articulate a limiting principle, and that Ginsburg and Kagan had to do it for him.
I’d be interested in what the professionals here think.
I’m a law student and was recently in an appellate advocacy mock competition. Easily half of my competitors did a better job than the Solicitor General in this case.
He wouldn’t have made it past the preliminary round at the West Virginia University College of Law with the argument he made yesterday.
Marijuana is an article of commerce. “Non-insurance payments” are not an article of commerce. In fact, they are the exact opposite of what commerce is. Remember when Superman went to that alternate universe where Kryptonite made him stronger?
It’s the same principle. Non-purchasing of something is bizzaro commerce.
But otherwise, your point is well-taken. There’s a way they could have framed the law to do exactly the same thing and have the Court uphold it by an 8-1 vote. Although, I am against this type of juggling, the Court precedent is not, but at least what the Court requires is that when you are passing a bill in Congress and add a tax, and expand Medicare, and “nationalize” health care, then you have to actually use those words instead of tricking people into thinking otherwise.
Um, the point would be that the law would say only insurance could pay for healthcare.