It’s not over until the Supreme Court formally rules . . . but that sure seems to be the upshot from oral argument today. SCOTUSblog summarizes that “there is no chance the Supreme Court is going to invalidate Obamacare.”
Both John Roberts and Brett Kavanaugh clearly appear willing to “sever” the individual mandate from the rest of Obamacare, rather than striking down the whole law. The final decision might not even get to that point — for example, the justices could decide that the folks challenging the law don’t even have standing to sue. But no matter what happens with the other issues, a majority for severability guarantees the law won’t fall. The mandate isn’t even being enforced anymore, so invalidating it, by itself, makes little difference.
In September I explained the background to the lawsuit and predicted that this result was likely. Those who want a play-by-play of the oral arguments should see this post from Jonathan Adler.