The odds of the Supreme Court striking down the individual mandate, indeed most of the health care law, became even more “probable” after Wednesday’s oral arguments, Ilya Shapiro reported from the court.
Shapiro, a senior fellow in constitutional studies at the Cato Institute who has filed briefs on the Affordable Care Act’s individual mandate, is covering the proceedings for The Daily Caller. If the individual mandate is struck down, would the rest of the law go down with it? More than likely, Shapiro said.
“The most likely ruling on severability is that all of Obamacare will fall along with its fatally flawed individual mandate,” Shapiro wrote to TheDC in an email. “While such a result would be legally correct, it would still be stunning.”
“Perhaps even more remarkable is that the severability argument proceeded under the general assumption that the mandate would indeed be struck down,” he wrote. “This was not a mere hypothetical situation about which the justices speculated, but rather a very real, even probable, event.”
But could the justices strike a compromise between the two arguments?
“There’s still a possibility that a ‘third way’ will develop between the government’s position (mandate plus ‘guaranteed issue’ and ‘community rating’) and that of the challengers (the whole law) — perhaps Titles I and II, as Justices [Stephen G.] Breyer and [Samuel] Alito mused (and as Cato’s brief detailed) — but the only untenable position would be to sever the mandate completely from a national regulatory scheme that obviously wouldn’t work without it.”
Shapiro noted that the justices avoided the section of the law that would expand Medicaid coverage. (RELATED: Full coverage of the health care law’s trip to the Supreme Court)
“The justices don’t want to reach the factually complicated and legally thorny Medicaid issue,” Shapiro wrote. “That may be another marginal factor pushing one or more of them to strike down all of Obamacare under a straightforward severability analysis and leave the ‘spending clause coercion’ issue for another day.”
“This was perhaps the most difficult of the four issues to predict, and having heard argument doesn’t really make that task easier,” he continued. “A majority of the Court was troubled by the government’s “your money or your life” stance, but it’s not clear what standard can be applied to distinguish coercion from mere inducements. Then again, if this isn’t federal coercion of the states, I’m not sure what is.”
Shapiro summed up the third and final day of arguments this way:
All of my pre-argument intuitions were confirmed, and then some: The Court will easily get past the AIA [Anti-Injunction Act], probably strike down the individual mandate, more likely than not taking with it all or most of the rest of the law (including the Medicaid expansion).
Still, it was breathtaking to be in the courtroom to see the Chief Justice and Justices Scalia, Kennedy and Alito all on the same page. (For example, when Justice Kennedy’s first question during yesterday’s hearing was, “Can you create commerce in order to regulate it?” — a question hostile to the government — my heart began racing.) Much as I’d love to think that my briefs helped get them there even a little bit, ultimately it’s the strength of the constitutional claims and the weakness of the government’s positions that prevailed — or will prevail if the opinions that come down in three months follow along the lines set by this week’s arguments. They may not of course — trying to predict the Supreme Court isn’t a science — but I’m coming out of this week feeling very good.