Free Markets, Free People

Hints about how the Supreme Court will rule on ObamaCare?

File this under speculation, because that’s essentially what it is (but you have to do a little of it every now and then, and besides, it’s a sport when talking about pending SCOTUS decisions), but still speculation with some possibility of being accurate.

It seems, according to  Avik Roy, that June 25th is most likely the day we will learn the fate of ObamaCare from the Supreme Court.

“Setting aside the ACA cases,” he notes, “the Court essentially has twelve other decisions to hand down.” In addition, “in recent Terms, the Court has handed down opinions on Wednesdays or Thursdays of both of the last two weeks of the Term, in addition to the regularly scheduled Mondays. And the Court has already announced that it will issue one or more opinions next Thursday, June 21.” Worth also noting, he writes, “the Court almost never issues more than four or five opinions on the same day.”

Hence, if the court issues four or five opinions each on Monday, June 18 and Thursday, June 21, that would leave between two and four opinions for the last scheduled day for reading opinions: Monday, June 25.

And how will the ruling go?  Well, Ruth Bader Ginsberg has said previously that there are some “sharp divides” among the justices.

But, again according too Roy, Ginsberg may have also hinted she’s on the “dissenting” side, meaning that she’s on the minority side of the decision.  The basis for that claim?

In her ACS remarks, Ginsburg suggested that she might be on the dissenting side of the case. “I have spoken on more than one occasion about the utility of dissenting opinions, noting in particular that they can reach audiences outside the court and can propel legislative or executive change,” said Ginsburg, in the context of a 2007 pay discrimination case.

Or that may signal nothing at all (she may simply have been speaking academically about “dissenting opinions”).  The key, if we accept the premise that she’s on the dissenting side of this particular ruling is what that means.

Roy mentions that the divide may not be associated with killing the mandate – there may be more than 5-4 agreement on that subject (he suggests it is almost a given that Kennedy will join the conservatives on the court to kill the mandate).   The divide may be with what to do with the law if the mandate is killed:

The key question is: how much of the rest of the law should be struck down along with it?

Ginsburg wittily put it this way: “If the individual mandate, requiring the purchase of insurance or the payment of a penalty, if that is unconstitutional, must the entire act fall? Or, may the mandate be chopped, like a head of broccoli, from the rest of the act?”

My understanding—again, from third-hand sources—is that this question of severability is the subject of intense debate among the justices, even now. It’s entirely unclear whether the Court will strike down the mandate and two related provisions—what I’ve called the “strike three” scenario; or take down the entirety of Title I, where the law’s restructuring of the private insurance market resides; or overturn the whole law. Indeed, it is probable that the Court has not yet decided how it will rule on this question.

As far as I’m concerned, I’d like to see the entire law struck down.  However, I’m now wondering whether or not that will play out. 

Roy also mentions Antonin Scalia’s recent book and asserts that it hints that Scalia is on the side of dumping the mandate and the law in its entirety.  He wonders if Scalia, given his writing about the scale of the Commerce Clauses expansion and Scalia’s unhappiness with that, has chosen ObamaCare as the case he’s chosen for judicial pushback. 

So, again, based on this speculation, one might surmise that the court has found the individual mandate to be unconstitutional, but is struggling with how much or how little of the law to strike down.

Of course, the individual mandate is the heart and soul of the bill.   It is the payment mechanism that undergirds the entire ponzi scheme program.   No mandate, no money, no expanded risk pool, not much of anything if it goes.

So perhaps even if the court leaves much of ObamaCare standing, it will end up being a Pyrrhic victory for its supporters as the law will then be unsustainable as it exists (minus the mandate).

I guess we’ll see on or around the 25th.


Twitter: @McQandO

Tweet about this on TwitterShare on FacebookShare on Google+Share on TumblrShare on StumbleUponShare on RedditPin on PinterestEmail this to someone

14 Responses to Hints about how the Supreme Court will rule on ObamaCare?

  • Last week, InTrade had the mandate strike-down at 69% for.  Whatever that tell you.
    Being the optimist I am, I think that its a gonner.  The Obami have not fared well in the courts.  It has been funny to watch.

  • The entire thing needs to go. Leaving even a remnent on the books is dangerous. But yeah, as a practical matter killing the mandate will  be good for a nice horse laugh in the left’s face.

    • I hope the entire thing is struck down. I’d get some satisfaction from seeing just the mandate struck down too, because it would be one of the few times in my life that the Supreme Court recognized *any* limits on what the government can do via the Commerce Clause.

      However… if only the mandate is struck down, that leads to a mess Congress will be forced to unravel. I’d like to think it would be an opportunity for Congress to strike down the whole thing, but what I fear is that it will be an opportunity for GOP squishes to construct a “grand compromise” with collectivist Democrats that will put as much of Obamacare in place permanently as they can manage. That’s where I think Romney would come down (if he were elected), and John “Great Man” McCain would be one of the ringleaders.  

      Naturally, they will position it as “good and necessary” compromise to deal with rising costs, lack of insurance, yada, yada, yada. But what they won’t do (because the Democrats would never go along, and the squishes don’t really want to either) is to revisit the source of the problem: the tying of healthcare to employment because of the tax laws.

      That, plus the rising percentage of healthcare paid for by government through Medicare, Medicaid, and public sector health plans, are barriers to a free market in healthcare. Without such a free market, things just are not going to get much better any time soon, no matter what grandiose BS squishes like Olympia Snowe and Lamar Alexander come up with.

      • O, what a tangled web we weave, when first we FLUCK with markets…

        The ONLY real solution is the one that goes to the roots of the problem(s).  Sadly, it would take a boat-load of clear thinking and gumption to get us there.  And, generally, we’d be hard-pressed to fill a bucket in the DC.

      • Great minds think alike.

  • If ObamaPelosiCare is struck down, in whole or in part, expect an endless series of maudlin predictions of dire consequences and a parade of “victims” before a sympathetic media.  Democrats will warn that this signals a need to reelect Obama to protect us from the fanatical extremist tyrannical justices appointed by Republicans the next time SCOTUS needs a replacement.
    A full dismissal means the specific flaws of ObamaPelosiCare, like the AHA payback of banning physician-owned hospitals, the union exemptions from taxes, etc. will all be forgotten and Republicans won’t be able to get any traction mentioning them.  (That’s in the past and it doesn’t matter and you’re probably lying and distorting, Sarah Palin blah blah, racist blah blah.)  The media will hound Romney to nail down a position on a new reform bill to fix the horrible, terrible “broken” health care “system”.  If he shows his cards, his plan will be subject to distortion and condemnation.  If he doesn’t offer a blueprint, then he’ll be portrayed as wanting children and old people to suffer and die, and for struggling workers to be at the mercy of the evil insurance industry.
    A partial dismissal means the media will hound Republicans to immediately rescue the victims.  It will be declared a crisis, and emergency legislation to fill in the holes will be needed.  Just as with the previous crises (TARP, spending cap) anyone who strictly opposes expanding government with any new programs will be wild-eyed, bomb throwing tea party extremists.  Anyone who calls for careful debate will be obstructionists who are dangling the victims over a pit of doom.  And, of course, the RINOs who call for compromise will be featured as the reasonable ones, and those who criticize the extremists and obstructionists will be endlessly cited.  I have every confidence that the cowardly Republicans will panic and give in to pressure to try to pass a compromise, which would expand government, increase costs, and reduce quality.  If they get enough votes, the Republican leaders will come out and humbly argue that they’ve come to an agreement which was “necessary” but they promise it will protect the economy (it won’t) and limit the government’s role (it won’t).  Once signed, Democrats will revel in their ability to fool the GOP into trying to kick that football, once again.  But if the “emergency” fixes aren’t passed, it will be time to march in the streets and play up the crises angle, hoping it will crescendo up into November.
    And, if SCOTUS upholds the law, it will be a grand and glorious victory for the enlightened one, a turning point for the comeback kid, etc..  Even if Romney wins, Democrats will dig in their heels until they regain power, and the impotent Republicans will only chip away at the margins.

    • Eliot, no offense man, but I hate you.  Cause damn me if you’re not a prophet.

      • Nah, I’ve just watched the Republicans disappoint so many times I expect them to stay in character.  I fell for Bush 41’s “read my lips”– then voted for Perot in retaliation–and for Gingrich’s “revolution”, only to see the “squishes” in the Senate (as Billy Hollis puts it) throw cold water on any substantive attempts to change the status quo.
        I got tired of the cowards and liars taking my vote for granted.

  • It is a shame that this obviously unconstitutional piece of crap will come down to the usual narrow party line vote. What it goes to show is that considerations of constitutionality and jurisprudence have no meanings to the left.  It is all about centralized government power and their perks, and that is all.

    • What it goes to show is that considerations of constitutionality and jurisprudence have no meanings to the left.  It is all about centralized government power and their perks, and that is all.

      It’s not just the “left”.  The Republican appointees are busy trashing the 4th and 6th amendments, for starters.  Witness Scalia’s “new police professionalism”.

    OK…THAT is just crazy. Obama going to war with the Supremes would be the icing on the cake.
    The Collective is looooooosing it…

  • IIRC, McCain actually got it right back in 2008 when he pointed out that the root cause of the health care mess was the tax system that provided an incentive for employeer provided health insurance.
     Not that I think he would actually do anything about it.

    For most health care, insurance makes no sense. It makes sense to buy insurance to cover long term care and other very expensive and rare situations, but for routine care what makes sense is to pay out of pocket. The fact that we don’t pay out of pocket means there is no price competition at point of service. This is the key problem with our system, and it is caused by the government.

  • I’m hoping to see the whole thing thrown out. Striking down only the mandate likely has the same result, but  want to see egg on the administration’s face.