Washington is all a twitter about how the Supreme Court might rule on Obamacare tomorrow morning shortly after 10AM. Of course, no one knows how the court will rule since there have been no leaks. However, some people point to clues—faint clues admittedly, but clues as to how the court might rule.
Most say they expect Roberts to write the majority opinion and that they expect Roberts and Kennedy to side with the majority. That would suggest that the decision will either be a 6 to 3 ruling upholding all or most of the law (maybe just striking the mandate and leaving everything else) OR we could have a 5 to 4 ruling striking down the law in its entirety since it is doubtful that Alito, Scalia, and Thomas will accept anything but a declaration that the whole law is unconstitutional.
Some people thought Scalia's caustic comments and scathing dissent in the immigration case might signal how the court will vote on health care. They say Scalia tends to become more caustic when things aren't going well for conservatives. That could be a signal that the court will uphold all or most of the law.
Others say that the split decision on immigration might be a clue that the court will find some middle ground. In the immigration case, the court upheld the stop-and-question part of the law but threw out the rest so neither supporters nor opponents got everything they wanted but both sides got something. That could signal that the majority will find a way to get rid of the mandate in the health law that conservatives don’t like will keeping the rest of the law, maybe even including the fines, that supporters of the law want.
As you know, there are four issue before the court, not just one.
First, is the individual mandate a tax or just a penalty. If the court says the “penalty” is really a tax—and it has all the characteristics of tax since it would be administered by the IRS—then the plaintiffs wouldn’t have standing to sue. You can’t sue until you have been “harmed” and you can’t be “harmed” by a tax until it takes affect. That would be the end of the whole discussion, case would be thrown out. No one expects the court to rule that the “penalty” is a tax if for no other reason than no one wants to have to revisit the whole issue in 2014.
Second, there is the issue of the Medicaid expansion. Most people expect the government/Obama to win this one if for no other reason than that the federal government is paying for practically all of the cost.
Third, there is the issue of severability. Congress didn’t include a standard “severability” clause saying that if one part of the law was declared unconstitutional then the rest was severable—could stand. Most people think the court will rule that the rest of the act IS severable from the mandate since courts normally assumes severability even if Congress doesn’t include the clause. Plus, if the act is not severable then the court ties its hands—has to either find the whole law constitutional or unconstitutional. They probably don’t want to restrict their choices that way.
Fourth and finally, we have the issue of the mandate. There is no question that Scalia, Thomas, and Alito think the mandate is unconstitutional. Based upon comments they made in oral arguments it appears that Roberts and Kennedy have serious doubts/concerns about the constitutionality of the mandate. Bets are that the mandate will go. Whole question is whether other parts of the act will go with it. Guess we will find out sometime tomorrow morning.