December 6, 2011
Here it is. This is the prediction everyone has been waiting for.
“Is the individual mandate unconstitutional?”
More specifically, “Does Congress have the power under Article I of the Constitution to enact the minimum coverage provision?”
The use of “Article I” instead of only “the Commerce Clause” means that the Court will also be discussing the Taxing and Spending Clause.
This discussion, though, is going to be limited to whether the mandate’s penalty is a tax, since, if the provision is a tax, there’s almost no question that Congress has the authority to enact the mandate under its Taxing Clause powers.
Moreover, as discussed in the first post, challenges to taxes are barred by the Anti-Injunction Act until after they take effect.
Thus, it is extremely unlikely that SCOTUS will decide the case on Taxing Clause grounds (again, see the first post for more details).
That leaves us with the Commerce Clause discussion, which will occupy a bulk of the Court’s opinion.
As usual, I’m going to start my predictions with the easiest Justices.
As most suspect, the four liberals – Breyer, Ginsberg, Sotomayor, and Kagan – will vote to uphold the law.
While politics may well play into their decisions, it won’t be the determining factor.
Rather, their own legal philosophies will be.
Generally, the liberal bloc has been willing to espouse a more expansive view of Congress’s authority under the Commerce Clause (see U.S. v. Lopez, U.S. v. Morrison, and Gonzales v. Raich for starters).
Considering that all of those Commerce Clause cases dealt with laws that regulated local, non-economic activity, it should come as a surprise to no one that the liberal bloc will vote to uphold the individual mandate, which regulates patently economic activity on a national scale.
Admittedly, I’m making assumptions about Sotomayor’s and Kagan’s views, but seeing as they were both appointed by Obama to replace retiring liberal Justices, it’s a safe assumption that both will align with the existing liberal bloc on this issue.
The next easy Justices are Thomas and Scalia.
In addition to the both of them being the most conservative Justices, both are more politically connected than the other Justices (as mentioned last week).
Thomas is a particularly easy prediction, given the fact that his wife has raked in at least $700,000 over a span of more than five years from the Heritage Foundation, a conservative think tank that has been very vocal in its opposition to Obama’s health care reforms.
She herself has also been a forceful opponent of the law, so unless Thomas wants to sleep on the couch for the foreseeable future, he’ll vote to overturn the law.
Scalia’s political connections are far less pronounced, but they are there.
However, perhaps what will be more significant in determining why Scalia will vote to overturn the law is his judicial philosophy.
Scalia is the least likely to be swayed by other conservative legal opinions, and he has consistently paved his own way on what direction the law should take, sometimes affronting longstanding Supreme Court precedent in the process.
Aggregated with Scalia’s general suspicion of Commerce Clause authority (unless used to criminalize intrastate marijuana use and consumption), we are left with the all but certain conclusion that Scalia will vote to strike down the health care law.
Considering that the next three Justices – Kennedy, Roberts, and Alito – are more difficult predictions and will all require a substantial amount of discussion, we’ll have to save them for next week.
Stay tuned for more!