ObamaCare's Chances

Today is the last scheduled day for Supreme Court justices to release their decisions on cases heard this term, although it is not uncommon for additional decision days to be added. There are at least six decisions still to be released (assuming the two juvenile life-without-parole cases and the three Affordable Care Act cases are rolled into one decision each).

Obviously, there is one upcoming decision which has received the majority of the media's attention: the Affordable Care Act. (The Arizona immigration law is a close second.) After listening to the majority of the arguments, here are what I believe to be the chances of the Court's decisions on each of the issues surrounding the health care law.

First, the Court must decide whether or not the law falls under the provisions of the Anti-Injunction Act, which prohibits lawsuits on tax laws until the taxes have taken effect. This position was opposed by both the plaintiff and defendant in the case, and as such, the Court appointed a lawyer to argue in favor of the Anti-Injunction Act. I highly doubt that the justices will take this route, as it will only delay the Court's consideration of the issue until 2016. Furthermore, the justices scheduled two more days of arguments for consideration of other issues related to the case, and it seems unlikely that they would have scheduled further arguments if they anticipated any possibility that they would dismiss the entire case on this one issue. However, I would maintain that there is a slight possibility that the Court could dismiss the case under the Anti-Injunction Act if the Court could not come to a consensus for a decision on the other issues. I find this a highly unlikely, but still potentially plausible, outcome.
My prediction: 95% chance the Court rules against the Anti-Injunction Act; 5% chance the Court dismisses the case under the Anti-Injunction Act. I anticipate that either way, the Court will rule unanimously.

Then, the Court heard arguments on the issue that has garnered the most media attention: the individual mandate. Going into the arguments, I was cautiously optimistic due to several recent decisions by the Court, especially since the appointments of Chief Justice Roberts and Justice Alito to the bench. (Obama's appointments have had little effect on the Court since they replaced justices with similar liberal ideologies.) However, the Court--especially Justice Kennedy, a critical swing vote--seemed to be stronger in opposition of the mandate than I anticipated. At some points, even Justice Breyer seemed to be concerned about the constitutionality of the mandate (though I still expect him to vote in favor of the law). The justices seemed to be aware of the distinction between regulating commerce that already exists and creating commerce that did not previously exist. Therefore, the question at hand is whether or not the Commerce Clause gives Congress the power to create commerce.
My prediction: 65% chance the Court rules the mandate unconstitutional; 35% chance the Court rules the mandate constitutional. Either way, I anticipate a 5-4 decision.

Next, the Court heard arguments on the issue of severability: can the rest of the law stand if the individual mandate is struck down? The government argued that if the mandate is struck down, the rest of the law should stand except for the Community Rating and Guaranteed Issue provisions. I find the government's argument in this case very difficult to support. Basically, the government's lawyers are asking the Court to strike down the provisions of their choice if the mandate is found to be unconstitutional. There is no doubt that, without a mandate, Community Rating and Guaranteed Issue would never have passed Congress, but there are many other provisions which may not have passed without the individual mandate. If the Court strikes down the two additional provisions but leaves the rest of the law alone, this becomes a case where lawyers are legislating the repeal. Furthermore, I highly doubt that the Court is going to take the time to go through every item in the 2000-page bill and try to guess which provisions would and would not have passed Congress without the mandate. I see two potential solutions: either the Court will rule the entire law inseverable and strike the law in its entirety, or the Court will strike only the mandate and leave it up to Congress to remove the other unsustainable items in the law.
My prediction: 55% chance the Court strikes only the mandate; 44% chance the Court strikes down the entire law; and 1% chance the Court strikes down the mandate plus other provisions. The decision will again likely be 5-4, but I could see the possibility of a larger majority--and perhaps even a unanimous decision--supporting striking only the mandate.

Finally, the Court heard arguments on the issue of the Medicaid expansion. States sued the government claiming that they are being coerced into the Medicaid expansion by the fact that all Medicaid dollars will be withheld if they refuse to participate. It is first important to note that this issue will be a moot point if the Court strikes down the entire law. However, should the Court let this portion stand, it will have to decide this issue. I find it unlikely that the Court will strike down this provision. Although at least four justices felt this issue should be decided, no federal court has yet ruled against the Medicaid expansion provision. Although I would personally like to see the Court strike down all of these "federally-funded but state-administered" programs as unconstitutional (thus giving the states the freedom to decide if and how they are implemented, run, and funded), I realize there is virtually no chance of that happening. If they uphold that the government has the right to force states to create these programs, then they will probably also rule that the federal government has the power to establish the conditions for receiving the associated funding. Chief Justice Roberts attempted to make the case that a line has to be drawn somewhere (i.e, the government could not withhold all federal funding for all programs for failure to comply in one area), but the reasonable place to draw the line is with funding for the particular program in question.
My prediction: 90% chance the Court rules the Medicaid provision constitutional; 10% chance it is ruled unconstitutional. I would anticipate a 6-3 or 7-2 decision if it is ruled constitutional, and a 5-4 decision if it is ruled unconstitutional.

If I had to give my best guess on the Court's ruling, I would predict that the Court will likely rule that the Anti-Injunction Act does not apply and that the individual mandate is unconstitutional. I would expect the government to uphold the Medicaid provision, but that may not be under consideration if the Court strikes down the entire law.

I personally believe that the Court met for its conference on the Thursday after the arguments and voted to strike at least the mandate and possibly the entire law. On the following Monday, Obama made his ridiculous assertion that he was confident the Court would uphold the law, saying that overturning it would be an "unprecedented, extraordinary step". My gut feeling (though I have no evidence to prove it) is that one of his appointees to the Court informed him of the results of the conference (likely a 5-4 decision), and Obama set out to try to swing a vote back in favor of the law. A justice changing his or her vote is certainly not uncommon, and in some cases, an opinion originally written as a dissenting opinion will end up becoming the Court's majority opinion. It is certainly plausible that Obama was trying to swing one of the justices (the most likely being Justice Kennedy) to change his vote prior to the release of the Court's opinion. However, what has transpired since the initial vote on March 29 is unknown, and there are certainly many options still within the realm of possibility.

The Court will issue opinions today, and it will likely meet at least one more time later this week to issue the rest of its opinions. By the middle of the day on Thursday, we will likely know the Court's final decision on this law.