OK, it’s not until tomorrow, but we might as well jump in now. Any thoughts in anticipation?
I think this is a tough one. I can’t imagine they will throw out the entire law, but the mandate? I can see them upholding 6:3 or 5:4 (Kennedy plus maybe Roberts in the majority). Or, I can see it being tossed 5:4 with both of those guys deciding it’s unconstitutional.
Either way, I’m sure there will be lots to talk about!
First of all, I’ll point out that Justice Bricker would hold the mandate constitutional under the authority of Wickard. Justice Bricker would write a separate concurrence (or dissent) laying out how I personally feel that Wickard was itself a poorly-reached decision, but that overturning it is impractical because of the caselaw and reliance built upon the Wickard foundation.
Now, since (sadly) Presidents Clinton, Bush, and Obama have not even returned my phone calls about Supreme Court openings, the actual prediction:
5-4 mandate unconstitutional. Opinion by Roberts, joined by Scalia, Alito, Thomas, and Kennedy.
Mandate is not severable from the rest of the law. Entire law is out.
If we’re guessing, I’ll guess 6-3 upholding. Thomas, Alito, Scalia in the minority.
If I’m right, what do I win? (other then a better functioning healthcare system)
So Justice Bricker is willing to give unbridled power to Congress because it is impractical to overturn a poor decision?
Wickard does not apply here anyway. Here is a section about that from a brief filed by Landmark Legal:
My prediction is the individual mandate will be struck down but the remaining law will be left in place for Congress to sort out.
Wow. I’ll be shocked if that’s the case, but it wouldn’t be the first time (that I’m shocked).
Hey Bricker…technical question here…
Hypothetically, the law is overturned–the whole thing, let’s make it easy.
So what is the effective date of this judgement?
The date of the decision, the date of the filing, a date set by the court?
Immediately – that is, as soon as the decision is made public. Unconstitutional statutes are void ab initio, from their beginning.
I will only point out that this was IMHO the last chance for private industry to have any useful control in the future of healthcare in America. If the mandate is gone I only see an increase of the health care bubble cost that will in a few years burst causing a lot of pain before finally the USA adopts a public option or UHC.
I don’t know how the court will rule, or if they will in fact rule tomorrow. I can certainly see how Scalia, Thomas, Alito and Roberts would want to act as a Republican super legislature as they have done so often. I don’t see Kennedy that way. Kennedy might sincerely decide that parts are unconstitutional.
If I were sitting as Justice Stone, I’d find the mandate unenforceable and unconstitutional, but that the Congress specifically devised a plan if people refused to participate and that such plan was well within its powers, and that the people raising the unconstitutionality did not have standing to raise it on behalf of the people who did not want to participate, and because it isn’t actually in effect, that it isn’t ripe for decision in any event and the Court isn’t going to ignore four decades of really ripe justifiability cases, law stands except for mandate. The Court decides controversies, and does not give advisory opinions.
Justice Stone’s splitting would require that corporate toady CJ Roberts would uphold the mandate so that his corporate masters could make greater profits.
But let’s see what they do to standing and ripeness when the shoe is on the other foot.
I think calling the mandate unconstitutional really kinda helps Obama. I think there a lot of single issue voters that will stay home in November if the mandate is killed. A lot of those voters would really rather not vote for romney.
I agree that the mandate will be found unconstitutional. I’m not sure whether it will be held severable, but my best guess is that it will not. Entire law is out.
Guessing what the SCOTUS will do is, at best, a crap shoot.
I’ll go out on a limb and say that they will decide 8-0 that the SCOTUS has jurisdiction to decide this case.
The other three questions I’ll leave to the experts.
Who recused?
Well, I just don’t see how the law is constitutional, so I think they’ll strike down the mandate. As the rest, it was sold to the American people as NEEDING the mandate to work. It was called, the lynchpin of the legislation. So, again, I can’t see the logic to upholding the rest of the law after the lynchpin has been struck down. So, no mandate, no law.
Upheld, 6-3. Thomas, Alito and Scalia dissenting. If the mandate does get overturned, I agree (and hope) they strike down the rest as not severable.
ETA: magellan, it doesn’t matter if upholding the rest is logical. All that matters is whether SCOTUS thinks Congress believed the mandate was a sine qua non for the other stuff. The court isn’t in the business of deciding whether enactments are logical; that’s the legislature’s job.
Doesn’t matter what it was “sold to the American people” as doing. If it is a lynchpin, it is; if it isn’t, it isn’t, independent of whatever was said to “market” it.
But really, there’s a huge difference between what you think/hope will happen and what should and will happen. I’m not even daring to guess right now; there are too many factors, many of which I don’t understand, in play (Kennedy, Roberts’ concerns for his legacy and as much of a unified court as he can get, the actual damn LAW, etc.).
I do agree, though, to comments in other places that this won’t have much of an effect on the upcoming elections; opinions about this law are already factored into polls and opinions from long ago. It WILL make a difference to people who need health care (i.e. everyone). I hope whatever happens, we get decent change out of it, because God knows this system needs it…
Oh, one further prediction: if any, ANY part of the law is overturned, there will be some conservatives/Republicans (not necessarily on this board, mind you) who will not heed Boehner’s advice and start crowing/gloating, making the right side of the aisle look like they’re dancing on the misfortunes of average people who can’t afford health care. At the very least, the optics of that are terrible.
The true test will be how all politicians of all stripes approach the future of the health care system. I happen to personally think that the “do nothing” contingent is a minority that’s rapidly shrinking, so SOME action, IMO, will be taken. We’ll see what kind, and how it affects the nation.
Intrade.com has the odds at 70.6% (as of this writing) that the individual mandate will be tossed.
I can’t find it now but I read a respected blog that follows the SCOTUS and they noted a recent speech by Ginsburg where her language seemed to suggest she was writing a dissent on this issue. Admittedly it was reading between the lines but the assumption was the mandate, at least, is gone.
The question on everyone’s mind is severability. Can/will they toss the whole law or just the mandate? Most seemed to think they would like to toss only the mandate but are not sure how that could be done.
So, mandate gone but even money on whether the whole thing goes.
Ginsburg. She doesn’t like the U.S. Constitution anyway.
Though considering that I’m pretty sure that most of that percentage is based on punditry of oral arguments, I’m skeptical as to how much to trust that as an indicator. How much do YOU trust layman analysis of oral arguments?
I’d guess they were the ones I mention here. The few comments that directly addressed them dismissed their potential significance. Which makes sense, I guess; why would a serious jurist hint like that to an inevitably national audience?