Opinion: Supreme Court Will Uphold Health Care Law 8-1

Friday, March 30, 2012 - 10:01 AM

Supreme Court Justices John Roberts, Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, and  Elena Kagan attend President Obama's State of the Union speech on January 24, 2012. Supreme Court Justices John Roberts, Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan attend President Obama's State of the Union speech on January 24, 2012. (Getty)

This week the Supreme Court survived six hours of oral argument spanning four distinct issues related to the landmark Patient Protection and Affordable Care Act. On Friday, the Justices will convene for conference and for the first time reveal to each other which way they are leaning on the issues. By the end of June, all the haggling will be over and the Court will be ready to issue their decision.

I do not think—and the oral argument Monday seems to confirm—that the Justices will throw out the case on justiciability grounds. Everybody appears anxious to have a decision sooner rather than later. Since the Court took the case, they are going to want to rule on the major issues.

There are five votes of which we can be certain.

Justice Thomas will vote to strike the law. He will not buy the argument that the law is a tax, as this would be a way for Congress to forever make an end-run around any limitation on their power. His view of the Commerce Clause is based on an interpretation that pre-dates the New Deal. In most cases that involve the Commerce Clause he goes out of his way to write, in my view, outlandish and extreme opinions (most notably his concurrence in U.S. v. Lopez).

Justices Ginsburg, Breyer, Sotomayor, and Kagan will vote to uphold the law. The “liberal” block of the Court will be applying precedent that has been the rule for the past seventy years and was recently affirmed in a 2005 opinion, Gonzalez v. Raich. They will conclude that Congress acted rationally and reasonably to regulate the health care market, which substantially affects interstate commerce.

Given that backdrop, let's start making predictions on the four toss-ups. They are Chief Justice Roberts and Justices Scalia, Kennedy and Alito.

Of this group, Justice Kennedy has been the justice most likely to side with the “liberal” block to give them a majority in the past. In Raich he voted with them to uphold the Controlled Substances Act. He has not written many opinions on the issue of the Commerce Clause, so it is difficult to know with certainty what is most important to him. Many of his decisions on major cases appear to be driven by assessing trends in public opinion. But given how divided the country is over the ACA this does not really help us. In several of his decisions he also discusses fundamental rights and liberties, of which he has a fairly expansive interpretation.

My prediction is that Kennedy will vote to uphold the law, because the underlying goal, improved access to health care for all, is something that he could construe as a fundamental right.

If Justice Kennedy sides with Justices Ginsburg, Breyer, Sotomayor and Kagan, I see both Chief Justice Roberts and Alito also siding with the majority. During their confirmation hearings they both said they were opposed to any “activist” court decisions. Voting to strike down this law, which would exact a large political price on supporters, would be the embodiment of an activist judge. They would be flouting years of precedent and putting the Court directly into the middle of the controversy. This would also allow the Chief Justice to assign the opinion to himself and construct a ruling narrower in scope.

Then there is the wild card: Justice Scalia. He voted to strike down laws regarding violence against women and guns around schools as being too attenuated from the Commerce Clause. But in 2005 he did not vote to strike down the Controlled Substances Act in Raich. Instead he wrote, “Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce.”

This would seem to be a statement very favorable to those defending the ACA. Another consideration: in early March I attended a lecture by Justice Scalia at Wesleyan University. He lamented how quickly litigants run to court when Congress or the government does something they disapprove of, instead of using the legislative or political process to reverse it themselves.

So add it all up, that is eight votes upholding ACA and only one striking it down.


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Comments [23]

Jeff W from topeka

You say you would have no problem if later on down the road if congress were to mandate broccoli. While I wouldn't either personally the implications of that kind of fed government power are staggering. You are leaving your freedom and liberty to buy what you want or not buy what you want in the hands of the federal government. All powerful governments HAVE NEVER BEEN GOOD FOR PERSONAL LIBERTIES-----NEVER. Sure broccoli isn't such a big deal but what if it is something you are really against and you are forced to buy it? in 2100 Congres decides that a new book has been written and it would be greatly beneficial for the book market and for the citizens as a whole if they were forced to buy and read the book. What then? it seems laughable to think about but change--like evolution or shifting magnetic poles on earth---happens on a very big time scale. several generations will pass and the government will slowly grow more powerful. If you leave your persona decision to the public policy whims of congress it is my opinion that the US will be nothing more than a facade of a "land of the free" before the end of this century. Arguably it already is.

You can shake your head and dismiss my concerns as fear mongering or scare tactics but just remember somewhere the following:

Let it not be said that no one cared, that no one objected once it’s realized that our liberties are in jeopardy.

Apr. 04 2012 10:12 AM
Jeff W from Topeka


I will address the wickward case and others only here. While the indirect result in Wickward may have been market participation because he was not allowed to grow his own extra wheat that is not the "precedent" as you term it. THe precedent that binds the court's decisions is nay the issue raised and the question answered by the case: may congress use the commerce clause to regulate this type of activity? the underlying question to be answered for that were: does this type of activity have an effect on interstate commerce? The answer was yes because of the aggregate effect already mentioned in my posts. THAT IS ALL THE COURT ADDRESSED. congress can use the commerce clause to REGULATE but mandating market participation is a far cry from the indirect and arguably coerced participation. The law in question didn't even seek to coerce market participation much less expressly mandate it. The heart of atlanta case forced small business owners to not discriminate but did not compel market participation for consumers. In that case the court found that the activity was affecting interstate commerce because black business men would not be able to find hotels when they travel for business and therefore could not do very good business. FOr me this is an example judicial activism. THe historical context influenced the decision and the rational doesn't hold much water. IF no one allows black people to stay in their hotels and BY DEFAULT some other hotels will pop up that do. Where there is an opportunity to make money someone will always step in a fill those shoes. Now the merits of that case are highly debatable but the main point here is that the issue was whether congress could REGULATE this type of activity. THe issue was not whether congress could compel market participation.

The indirect results of precedent cases ARE NOT IN ANY WAY CONTROLLING OR INDICATIVE THAT IT IS ENDORSED OR ALLOWED BY THE COURT. only the issues that the court addressed specifically serve as precedents. Congress was neither trying to compel market participation nor were they mandating it so really wickward ranch and heart of atlanta are really relevant at all for this new novel question before the court.

in short: the indirect results of the cases you cite are irrelevant. The court has never ruled on a substantive matter involving mandated market participation.

Apr. 04 2012 10:12 AM
Harrison Bergeron from NYC

# Osborne: "... Today it is ridiculous to suggest that Congress would have the ability to mandate broccoli eating..."

Maybe not today. But you know that zen quote: "Drop by drop the bucket is filled".

# Osborne: "... Is ordering advanced tests "defensive" or just careful doctoring?"

The lawyers are driving much of this. I suspect that much is legal defence. (I'll spare you the stories).

# Osborne: "... Second, the cost of defending a law suit is high, but to take a case to trial and win is also quite expensive. So yes, I am willing to reform the system too. I think there should be a specialized medical court with the expertise available to assess claims and quickly make binding rulings."

But there is nothing like that in this bill.

# Osborne I realize that your original post focuses on the constitutional issues of this particular law, but there is a larger framework that it fits within. So:

## My layman's notion is that:

Our system of civil law often relies upon precedent to guide current decisions. Among other effects, this allows any past bad decision to continue to screw up decision making far into the future.

I suspect that if the whole body of civil law were subject to careful review with respect to adherence to the Constitution -- then a large part of the civil law would be thrown out.

## Particularly with this "health care" law, two big problems for me are:

We don't really know who wrote it nor what their motivation is.
I suspect big business entities in the health care industry, such as insurance and pharma companies. We might get some clue if we could know what stocks congressional representatives and senators started buying after the bill passed.

And we don't really know what's in it.
Somebody point me to the page where it says we help the mentally retarded kid or the single mother trying to make things work. Then explain what the other 2700 pages are about.

Apr. 03 2012 09:25 PM

Mr. Jeff W -- I am reading your comments distinguishing Wickard and I am not convinced. Is your argument that the question of compelling market participation was not asked in Wickard and therefore we can not conclude that Congress has the power to compel.....even though that was the result of Wickard? You do agree that farmer Filburn lost the ability to produce the maximum amount of his own wheat and could only go to the open market to replace that lost production? This is compelled economic activity no? What about Heart of Atlanta and Ollie BBQ? They clearly show the government forcing small business owners to engage the whole public at large? You talk about a limiting principal and I guess I'm saying that the democratic process of debate and discussion is more than sufficient to limit power. Today it is ridiculous to suggest that Congress would have the ability to mandate broccoli eating. Maybe sometime in the future it will not seem ridiculous and then im all for it. (see im a broccoli fan so that would be a huge boon for me)

Great WSJ article! I hope anybody who is interested in the topic of judicial activism reads it over. I will still definitely call any majority that strikes down the ACA activist. I think they are flouting prior precedent and deciding a case based on their own beliefs and goals. This is, obviously, my opinion and i think it is clear that Jeff W and I will always be on opposite sides here.

I am glad you are familiar with the McDonalds Coffee case. I do not believe that defensive medicine is crippling the cost of the health system. First we have major definitional issues here. Is ordering advanced tests "defensive" or just careful doctoring? Second, the cost of defending a law suit is high, but to take a case to trial and win is also quite expensive. So yes, I am willing to reform the system too. I think theere should be a specialized medical court with the expertise available to assess claims and quickly make binding rulings.

As an aside, it is my opinion that one reason our society is so litigious is due to the fact that health care is so expensive. If people could just go to the doctor when they were injured, they may not feel like they have to sue somebody in order to have their bills paid.

I apologize for not responding more in depth to all of your comments. You have definitely given me a lot to think about. Thanks for reading the piece and giving your feedback. I am done commenting and cede to you the final word should you want it. Looking forward to the end of June to see who is right.

Apr. 03 2012 08:25 PM
Jeff W from topeka

WSJ links are going haywire

Apr. 03 2012 03:58 PM
Jeff W from topeka

here is an interesting portrayal of judicial activism:

it seems that your definition of the term depends on which side of the aisle you sit. Right: deciding cases based on personal opinions and politics. Left: deciding otherwise democratically enacted laws to be unconstitutional.

It would seem that the separation of powers is not valued too much by the left but the article is written by Taranto who I believe to be right leaning.

Apr. 03 2012 02:42 PM
Jeff W from topeka

One more:

Activist decisions are those that deal with issues that should be left to the legislature. Example: the supreme court deciding that healthcare does not need reform. Not an example: deciding that the mandate is unconstitutional because it gives unbridled power to congress to mandate market participation in any market. Matters of public policy are left to congress. Basically congress determines the reasons behind a law and the court is not to question that but only whether the law itself (absent the policy decisions) is constitutional.

Osborne: "For me (in my opinion), striking down the ACA would qualify as activist because 1) there is clear precedent to support what Congress has done, 2) the amount of time, energy and debate that went into the passage of the law is huge. Politicians spent enormous amounts of political capital, and 3) for the Court to swoop in and nullify the law is the ultimate activist move."

1) No there isn't. Congress has never mandated participation in a market using the commerce clause---NEVER. There is a very real difference between regulating commerce and creating commerce in order to regulate it. While you argue that everyone is in the market because everyone will need it at some point there are UNDENIABLY some people who do not have health insurance nor do they want it. This law mandates that they enter the market and this has never been before the court in any case. if Congress can do this what is next? Surely (for the same policy reasons which the court won't question) they could mandate the end of cigarette production or alcohol consumption. Two things which lead to more deaths than anything else. Surely they have something to do with the healthcare market no?

2) this is irrelevant. THe amount of time and resources that go into a law have no bearing on its constitutionality. Congress could spend as much time creating a law abolishing freedom of the press and this does not make it constitutional.

3) if the law is deemed unconstitutional then the court is merely doing its job. Basically this last point seems to be "if the court disagrees it is clearly activist." Congress knew that trying to do this under the commerce clause would result in a legal battle (if they didn't then they are even dumber than I expected and that is saying something). The only reason it wasn't called a tax and made a tax is because of Obama's little campaign promise: no more taxes for middle and lower income brackets.

So in your opinion the court shouldn't be deciding this case at all? I mean it seems that if they uphold it then they are doing it right but if they don't then they are just being partisan activists. You see what I'm getting at here?

Apr. 03 2012 01:58 PM
Jeff W from topeka

I totally agree that healthcare needs some big reforms and is not sustainable but using the commerce clause to fix it is not the answer. The government should just take in taxes from all and then use it to provide the healthcare everyone has a right to. Government is either gonna have to sack up and risk pissing off some voters by making new taxes (which is the whole reason the law tried very hard and succeeded in making the mandate NOT a tax) or having some reform in the area of medical malpractice. You may have noticed that I may lean a little to the right so no doubt your head just exploded when I agreed that healthcare needs reform. part deux: tort reform in general is a very bad idea that leads to injustice. Now that I succeeded in blowing minds let me explain: tort reform is nothing but a tool used by republicans to protect big business. THe often cited to Mcdonalds v Liebeck case was not an instance where someone was looking t get rich and was instead a case of very bad unethical and immoral business practices by a corporation. Mcdonalds had decided that having coffee that would cause 4th degree burns with only a couple seconds of skin contact was more profitable than cooling it off just a little and being safer for consumers. This infamous case was one of hundreds of lawsuits against mcdonalds for the burns caused by their coffee and mcdonalds basically decided to say screw it...we'll just pay the settlements.

With that being said--Med mal is an area of tort law that does need to reform. Doctors are so afraid of being sued because everyone is looking to cash in. I have heard many stories from doctors about patients being visibly upset when a procedure goes right because they can't join the big class action against some doctors. This leads to astronomical prices for malpractice insurance and in turn astronomical hospital bills and in turn to rising insurance costs. In my mind this is the best way to get on the road toward healthcare reform (although it is admittedly a much harder road to go down).

Anyways: I also respect your opinion although we don't share the same views. It has always been my opinion that all people want the same thing: prosperity and freedom for all. Sometimes we disagree about the best way to get there and that is fine. But when people lose sight of that and make it personal and demonize the other side's views without even listening---that is a problem. I would even suggest it is the biggest problem we have because it leads to less cooperation which has a slippery slope effect that creates new problems exponentially. Enough pontificating from me.

Apr. 03 2012 01:33 PM
Jeff W from Topeka


Neither Wickward nor Riach were cases about whether congress can compel market participation. Wickward: The Agriculture Adjustment Act of 1938 set quotas on the amount of wheat put into interstate commerce and established penalties for overproduction. The goal of the Act was to stabilize the market price of wheat by preventing shortages or surpluses. Wickward violated this and was assessed a penalty. The court found that it came down an aggregate effect argument (not so bad when one person does it but if everyone did it--disaster). So congress can regulate that area because of this aggregate effect but the case did not speak to issues of congress compelling citizens into market participation. The Raich case was more of the same as it centered on congress' ability to regulate people growing marijuana for personal use. THe argument against this was that it has no effect on interstate commerce. Once again the court used the aggregate effect rationale for upholding the law and Scalia was seen as supporting broad government power. However neither case dealt with whether the law was "proper" as required under the constitution. While the law may be necessary to enforce a larger more general reguatlion scheme (as Scalia opined in his Riach concurrence) it is not automatically proper. This is the crux of the case and where the limiting principle comes into play: no limiting principle=not proper.

Even if those cases were about government compelling market participation there are some fundamental differences here: 1) the ACA isn't compelling participation through incentives or other laws--it is mandating it (much higher level). This is a huge difference and it plays into the limiting principal which appears to be so elusive. 2) Raich and wickward were upheld but the court did not have to delve into the "proper" prong of the test because there were meaningful limits on congressional power in those cases.

Apr. 03 2012 01:32 PM

Mr. Listener -- I find your characterization around the debate and passage of the law as incorrect. Has there been any law passed with as much media coverage, public hearings, presidential speeches, and congressional work hours spent as the ACA? Not to forget the countless town hall meetings. It took well over one year for it to move through Congress to the President's desk. Yes, some people were/are opposed to the law. But some people are in favor of it. I'm sorry if you felt like you were defamed and derided but to say this was forced through without debate misses the mark in my opinion.

That being said, you ask a great question: Why would i argue that a decision to rule the ACA unconstitutional is an activist decision? I guess "activist" is in the eye of the beholder. Should the Court decide to strike the law, they will undoubtedly say, "our hands are tied. we are simply interpreting the confines of the Constitution and unfortunately for supporters of the ACA, there is nothing in there to support the law." Nobody is going to say my decision is activist. Hmm, in that sense i think you could argue that every decision is activist. The Court is interpreting text and reaching a conclusion. Anyway, not sure that this paragraph is at all useful except for pointing out your excellent question.

For me (in my opinion), striking down the ACA would qualify as activist because 1) there is clear precedent to support what Congress has done, 2) the amount of time, energy and debate that went into the passage of the law is huge. Politicians spent enormous amounts of political capital, and 3) for the Court to swoop in and nullify the law is the ultimate activist move.

I hear where you are coming from. I hope you can see my side and then we can just agree to disagree.

Apr. 03 2012 06:29 AM

Mr. Big Guy -- you may already be aware of this fact but Justices Scalia, Kennedy, Thomas, Roberts, Alito and Sotomayor are all Catholic. That's right, 6 of the nine justices. I don't think this really informs anything however...

Mr. Jeff W -- you have obviously thought about this case a great deal and while i do not share your views I respect your opinions. I think our biggest disagreement is about Congress "compelling" people to enter the health insurance market. First, there is clear precedent for Congress to do this. In Wickard v Filburn the Court upheld wheat quotas which would "compel" a farmer to buy wheat on the open market rather than produce what he needed on his own farm. A similar scenario in Raich found the Court concluding that people growing their own marijuana plants would distort the black market for the drug and therefore Congress could regulate (ie prevent) private growth and, in a sense, compel people to turn to the black market. I know that is ultimately not the goal of Congress in Raich, but that is the effect right? And then there are the civil rights cases (Heart of Atlanta and Ollie Barbecue) which "compelled" hotel and restaurant owners to serve people of color.

Any law or regulation is going to "compel" people to change their behavior right? Likely in ways that will affect them economically. I just do not see how the argument that people are being compelled to buy insurance would get any traction.

Looking at health care, I find it disingenuous for anybody to argue that they are NOT a part of the health system. 1) At some point everybody needs health care. And 2) hospitals have no choice but to help people when they come in. It is not a question of whether you will need insurance but when. Insurance will not work if you do not have to pay when healthy. It's that simple.

And let's just take a moment to think about how significant health care services are. This industry accounts for over 15% of our economic activity every year. It is causing our government to go broke. Even if you are somehow superhuman and never get sick, the health system still effects you because there is less funding available for schools or roads or space exploration or military helicopters or public housing. Point being, we are all a part of this mess and we all are "compelled" to participate in it already.

Apr. 03 2012 06:01 AM

Since when is it “activist” to uphold the US Constitution on a massive law that even those who voted for it have no true idea what is in it? Was it “activist” of the Democrat leadership to ram this unpopular law through with so much opposition which they defamed and derided rather than debated.

Apr. 02 2012 05:33 PM

Just a thought, but 8-1 to uphold is taking it too far. At present I'd say you are right, though, in predicting 5 votes (4 in favor, 1 opposed).

So, I suspect Roberts will author a 7-2 or 6-3 opinion (of which the dissents may take different forms) and take the opportunity to define his legacy right now.

For those who assumed a 5-4 decision where Kennedy is the fulcrum and the deciding vote... that narrative is still available to you, though it rings a bit hollow and political. Bush v Gore, etc. Roberts could also assign the opinion to Kennedy, but that would be more likely with a 5-4 split anyway.

Apr. 02 2012 01:59 PM
Jeff W from Topeka


I wouldn't be so sure that any of the justices will decide this case based on the election in november. You paint them as political activists a bit too much with that assertion--that is in my opinion of course. I also don't think that energizing the liberal vote will be any more energized than the centrist voters and the right would be. This law being struck down will make winning harder not easier for Obama.

It doesn't matter if thomas' wife was paid by a conservative think tank or not just like it doesn't matter that some of the liberal judges have some conflicts of interest. justice thomas has virtually never voted in favor of expand federal power because he is very much an originalist when it comes to the constitution. his wife literally has no effect. And the liberal justices are the same.

Apr. 01 2012 01:54 PM
Jeff W from Topeka


considering this vote is neither about corporations nor the catholic I am missing your point. Roberts and Scalia both have opinions supporting expansion of federal government power under the commerce clause. See Gonzalez v Raich. You dismiss the conservative votes as being purely ideological and along party lines but 1) that just isn't always the case and 2) you seem to be doing the same thing the rest of the liberals have been doing....dismissing the conservative argument out of hand as unreasonable and ridiculous. It is the failure to take the well reasoned arguments against the mandate that had led to the left being flabbergasted that oral arguments weren't more of a breeze for the government.

And you mentioned roberts never voting in favor of a poor individual but the liberal bloc is the one that has consistently voted to destroy americans 4th amendment rights--oftentimes in cases involving those "poor" individuals. Sounds like you posted that from a glass house friend.

From your post it is obvious that you have not read many supreme court opinions or analyzed the reasoning used by many of the justices but nothing is ever decided in an arbitrary manner. THe only reason the cases make the court in the first place is because there is an argument on the other side of the issue that makes sense and cannot be dismissed as ridiculous or unreasonable. Every now and then all of the justices (liberal and conservative) write opinions that are a little weaker than others but their arguments are still salient. For you to act like the supreme court is the height of corruption in america is plainly false and not even a colorable argument. Oh wait.....politically minded people dismissing the other side and the arguments they use as corrupt and lacking a basis in reality? Just another day in the american political discourse.

Apr. 01 2012 01:49 PM

From your mouth to God's ears -- or at least the Supreme Court's.

You attribute far more generosity and empathy to the conservatives on the court than is reasonable. If the 5 could vote in W, they will have no compunction about voting out the mandate to purchase insurance, perhaps throwing out the entire bill. Very, very little of the behavior and writings of the conservatives upon the court indicates that their focus is primarily upon doing what is fair and just and right rather than doing what is ideologically pure Republican Conservatism.

Has Roberts ever decided anything in favor of a poor individual or class against a corporation or government?

Has Scalia ever decided anything in opposition to the Catholic Church?

It's the same with the rest. God help us all.

Apr. 01 2012 11:16 AM

I must be more cynical than the writer. I think the more liberal justices will vote for the healthcare act because they believe it is constitutional. And I think at least some of the conservative justices will vote for it, because voting it down would electrify the liberal vote ahead of the November election, something they don't want to see happen.

However, I do agree that Clarence Thomas will vote against it; because he consistently votes against anything that offers a social safety net for the less fortunate. And because his bread's buttered that way (wife's significant income from those seeking to overturn it.) And he should have recused himself, but he doesn't have the intellectual honesty to acknowledge his bias.

Mar. 31 2012 06:27 PM
Erin Mac from Rhode Island

Mr. Hazel, I envy your optimism (especially if this positive outlook informs other areas of your life.)

Mar. 31 2012 06:24 PM
Jeff W from Topeka

Roberts and Alito will join the 5 justice majority if the law is upheld to make it 7? They will do nothing of the sort. This cannot be considered judicial activism as the court is not deciding based on Congress' public policy findings. The crux of the case is wether congress has the power to do this in any situation. There is no conceivable way to limit this power as the healthcare market and the public policy rationale behind the act can be applied to every market in existence. The solicitor general had abundant time and resources to develop a limiting principle and yet looked like a 1L during his first oral argument when attempting to articulating one. His only response was that the insurance market is different with little explanation. The only difference is that healthcare needs some reform (public policy consideration). meaning that if congress makes another public policy decision in any other market in the future then it can simply force citizens to enter it. This applies to EVERY market. This will not pass constitutional muster for any of the conservative leaning justices.

I wouldn't even be completely shocked to see one of the liberals join to strike it down 6-3. Wait....yes I would.

Mar. 31 2012 04:17 PM
Jeff W from Topeka

Scalia will easily distinguish his Raich opinion. The Raich case did not delve into every prong of the constitutionality test that it could have. Scalia said that congress could regulate non-economic activity as long as it is necessary to a more general regulation. While the court delved into the necessary issue it did not ask if it was "proper" because it obviously was. Scalia even said as much when he said that a law that would be "necessary" is not also automatically proper. Congressional power with no conceivable limitation is not proper by any definition of the word. I've heard some more liberal commentators criticize the hypothetical broccoli situation that Scalia brought up as being very speculative and different than the insurance situation. That hypo seems to bring up feelings of amusement as it seems impossible that such a law would ever be enacted. However the justices are not fortune tellers. HOwever unlikley such a result seems congress would have the power to enact such a law if they deem it to be beneficial for the country as a whole. This policy based decision would not likely be questioned by a court that has upheld the exact same type of legislation in the past.

Kennedy is the swing vote no doubt. However I would be surprised to see him side with the liberal bench. While he may very well see healthcare as a basic human right he also hinted at the very crux of his decision. There is a difference between regulating existing commerce and creating commerce in order to regulate. While the government can compel citizens to enter the market using the taxing power (a favorite to bring up among liberal--see social security and medicaid) there is considerable doubt about whether that extends under the commerce clause. If it does then congress' power is unlimited because it all comes down to a policy consideration of congress and the court won't question that. This is going to be the sticking point for the conservative leaning judges and I will be shocked to see the vote be anything but 5-4. Kennedy is the only question here.

I am also well aware that the court has from time to time decided cases that could arguably have been public policy decisions by congress and others. In these cases the court could at least reasonably construe the case as not involving public policy considerations whereas there is no room for interpretation with the ACA. If congress wants to compel citizens to enter this market they are going to have to collect taxes and then distribute.
There is little chance that Thomas Scalia Roberts or Alito will uphold the law.

Mar. 31 2012 03:36 PM

Mr. Scott K -- regarding consistency you have no argument from me there. I would agree that ANY judge can find a way to distinguish a prior decision. My point is I see no reason for the Court to abandon precedent in this particular case, in an election year, under such bright lights. The Court has its own political capital to worry about and they have spent a lot of it over the years with Citizens United and Bush v Gore. Their legitimacy is under scrutiny and for them to issue one of the most activist decisions ever would validate the fears of many commentators and the public at large.

Harrison and Scott -- If the Court rules to strike down the law, I agree with you both that it will be by a vote of 5-4. But if there are 5 votes to uphold the law, that will instantly become 7 (Roberts and Alito to avoid appearing like judicial activists) and, as i argue, potentially even 8 (Scalia) votes to uphold.

Mar. 31 2012 09:06 AM
Harrison Bergeron from NYC

Your intention is obviously to incite a debate, and obviously you don't care for Thomas. Personally, I can't see this going any way other than 5-4. Beyond that I would not venture to guess the outcome.

I would like to believe that judges are extremly intelligent people, with great reasoning powers, even-handed and open minds, and an understanding that their actions today will direct future history for a generation or more. But of course I don't believe that. I expect that mostly they are people of average intelligence, common predjudices, and some political connections.

Setting aside the discussion of the constitutionality of this (or any other) law:

My guess is that this bill was drawn up by the insurance companies, the pharmaceutical companies, and such. Its major effect is to force everyone to do business with them and do it in certain defined ways that no lay person nor doctor nor congress(wo)man can completely comprehend.

Significantly, it does not address a major cost factor -- maybe the major cost factor -- in the USA's health care system: costs associated with legal liability. Likely, this is because almost all the law makers are lawyers themselves.

I've tried to sort it out. I downloaded a copy when they were about half way through the legislative process. I found actually three separate bills that appeared to be related, around 2,500 pages total. I read through the first 200 pages in detail and browsed the rest. I could not make a lick of sense of it -- and I have done a lot of technical reading and writing over the years. There are many references to arcane sections of the social security code going back to 1964 and all kinds of legal mumbo-jumbo.

But I could not find the page that said I was going to help the family with a child born severely disabled, or the fireman's widow and kids, or anything like that at all.

That's the part I want to do! That's the way the bill was advertised to us! So why are those parts so hard to find? And what in Hell is the rest of it?

Mar. 30 2012 10:15 PM
Scott K from Brooklyn

This is an interesting analysis/prediction that is, as I guess it was intended, provocative. I'd say there are at two premises that are weak. 1. The premise that the judges, particularly the conservative judges, will rely on reasoning consistent with past reasoning. Consistency itself is ambiguous since I'm sure they can find a way to rule on either side and justify/reconcile it with their past rulings and court precedents. That's what they have their teams of interns researching. 2. The Raich ruling involved "illegal" drugs. That changes everything for a conservative judge. I'd say seeing them flip on that ruling is evidence that consistency, despite what they may claim, is not their main concern. I predict a 5/4 split against and have no idea how bad it will be, or a 6/3 upholding the law with Roberts joining the majority so he can meddle with the ruling's decision.

Mar. 30 2012 08:01 PM

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