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Bench Memos

NRO’s home for judicial news and analysis.

My Predictions for Tomorrow’s Decision



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I have to start with a disclaimer: When I was his clerk, Justice Thomas used to make us guess the outcomes of cases before he told us the actual vote count. We were wrong much of the time. This exercise was designed to illustrate how hard predictions are even when you not only have studied the cases in-depth and attended oral arguments, but have all sorts of inside information. Now being on the outside of the black box of the Court, we should be even more humble as we speculate about case outcomes.

So I won’t be betting the farm on my hunches here — though on the broader contours of the decision I might be induced to bet this year’s tomato plants.

For starters, everyone agrees the Court will probably find that the Anti-Injunction Act doesn’t apply or applies but can be waived because it isn’t jurisdictional. However they get there, I bet the justices unanimously agree to move forward on the merits.

Regarding the central question in the case, I think the mandate will be found unconstitutional.  

After oral arguments, it seemed like there were four solid votes against the mandate in Chief Justice Roberts and Justices Scalia, Thomas, and Alito. Justice Kennedy spent almost all his time criticizing the mandate’s defenders, and asked only one question that suggested he could rule in favor of the mandate. In that question he characterized the relationship between those inside and outside the health-insurance market as “uniquely proximately very close” and suggested the federal government might regulate non-participants in such a case. But “unique, proximate very-closeness” is hardly an easily-administrable or constitutionally-significant limiting principle, and I think Justice Kennedy himself realized that even as he asked the question. Hence his qualifier, “in the next case, [the government will] say the next market is unique.” 

The four liberal justices all telegraphed their likeliness to uphold the mandate, either willing to accept the government’s attempts at articulating a limiting principle or genuinely unconcerned about a government that regulates its citizens from cradle to grave.  

I agree with Ed that the writing assignments from Monday make it even more likely that we see the Chief authoring this case.

The next big question is severability, and I think the answer is much less easy to predict there.  

At a minimum, if the Court strikes down the mandate, they will strike down the guaranteed-issue and community-rating provisions that the government argued should fall with the mandate. Yes, they appointed an amicus to argue the Eleventh Circuit’s position severing the mandate alone, but as often they seemed to recognize that position as a weak one. There is a reason none of the parties was making that argument. Plus, the Court generally gives deference to the opinion of the solicitor general and some justices might see a severability ruling that tracks the government’s argument as at least a consolation prize.

There is a distinct possibility, however, that the whole law will fall with the mandate. Justices Scalia and Kennedy in particular seemed interested in the clarity and easy applicability of such a rule. It is not impossible to imagine Justices Thomas and Alito joining them along with the Chief to make five votes.  

It’s also possible, especially in light of an exchange between Chief Justice Roberts and Paul Clement near the end of the severability arguments, that the Justices could craft a middle road on severability. While there are some provisions in the law that do seem truly peripheral — including everything from reauthorizing the Indian Health Care Improvement Act to requiring employers to provide breastfeeding rooms for their workers — there are some major health-insurance regulations besides community rating and guaranteed issue that plaintiffs argued are “inextricably intertwined” with the individual mandate. These include state exchanges, subsidies, employer regulations, and the Medicaid expansion at the very least. I can imagine a coalition of five justices agreeing to strike almost all the law, leaving a couple preferring the SG’s position and others preferring complete invalidation.

A side benefit to a severability outcome striking down a larger portion of the law would be to dodge the Medicaid expansion question. I can imagine the justices not wanting to wade into the uncharted territory of state coercion law, but they did choose to grant the case in a move that wasn’t obvious, so if they were truly hostile to taking on this thorny question (or if at least six were, since only four must vote to grant cert), it would have been easier to just not grant review of the issue in the first place.

My guess is that the Court will manage to avoid the issue through severability. But if they do address Medicaid I’m almost ready to flip a coin on the outcome. The Chief Justice asked hard questions of both sides, alternately comparing the potential funding loss to the states if they don’t go along with the Medicaid expansion to a gun to their heads, and basically telling them that in accepting money from the feds with strings attached they made their bed and should go lie in it.

I will be at the Court tomorrow at 10 to hear the announcement, and will summarize the opinion(s) for Bench Memos readers as soon as I am able to afterward.



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