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On Thursday, Roberts Is Likely To Write The Supreme Court Opinion That Partially Overturns Obamacare

June 25, 2012

By Avik Roy

Today, we learned that the final day of the Supreme Court’s 2011-2012 session will take place at 10 a.m. on Thursday, June 28, and that Chief Justice John Roberts will most likely issue the majority opinion. (I’ll be running a live blog that day over at National Review, beginning at 9:30 a.m.) From what Roberts said at oral argument last March, it’s likely that this means that Obamacare’s individual mandate is going down, but that some of the law will remain intact. Here’s why.

We don’t know for sure that Roberts is going to write the majority opinion, but veteran court-watchers say it’s almost certain, because Associate Justice Anthony Kennedy wrote the majority opinion in the Arizona immigration case that was read today. The Supremes try to rotate the authorship duties around, so that everyone gets their fair share of opinion-writing. After today, Roberts is on deck.

Prior to oral argument in March, it was widely speculated that Roberts would join the majority, no matter which side won, so that he could control the actual opinion that had legal weight in the case. (As Chief Justice, he has that right.) This would mean, most likely, either a 5-4 decision against the individual mandate, or a 6-3 decision in its favor.

Roberts expressed deep skepticism of the individual mandate

However, after oral argument, it became more clear that Roberts was skeptical of the mandate’s constitutionality, and understood that the mandate is really about cross-subsidization, and not personal responsibility. "If I understand the law," Roberts said, "the [insurance] policies that you’re requiring people to purchase must contain provision for maternity and newborn care, pediatric services, and substance use treatment. It seems to me that you cannot say that everybody is going to need substance use treatment or pediatric services, and yet that is part of what you require them to purchase…You cannot say that everybody is going to participate in the substance use market and yet you require people to purchase insurance coverage for that."

Roberts was also skeptical that the individual mandate’s consequences could only be limited to health care, because health care is somehow constitutionally unique. "I think that would be a very significant intrusion by the Court into Congress’s power," Roberts said. "It’s good for you in this case to say, ’Oh, it’s just [limited to] insurance.’ But once we say that there is a market and Congress can require people to participate in it, as some would say—or as you would say, that people are already participating in it—it seems to me that we can’t say there are limitations on what Congress can do under its commerce power…all bets are off."

Roberts also ridiculed the idea that the mandate was constitutional because it was a tax, not a penalty. "You’re telling me they thought of it as a tax," he asked Solicitor General Donald Verrilli, "they defended it on the tax power. Why didn’t they say it was a tax?"

Roberts was more equivocal about severability

Roberts made several interesting comments in the hearing regarding the mandate’s severability from the rest of the law. Congress "would have passed parts of the hollow shell [of the law]," Roberts said that day. "I mean, a lot of this is reauthorization of appropriations that have been reauthorized for the previous 5 or 10 years and it was just more convenient for Congress to throw it in in the middle of 2700 pages than to do it separately."

On the other hand, Roberts expressed the same concern that other conservative justices did, that it will be impossible for the justices to comb through the law to extract every provision that is related to the mandate. "Do you really expect the Court to do that?" exclaimed Antonin Scalia. "Or do you expect us to give this function to our law clerks? Is this not totally unrealistic? That we are going to go through this enormous bill item by item and decide each one?"

After Deputy Solicitor General Edwin Kneedler gave an unsatisfactory response, Roberts replied, "It’s a question of statutory interpretation. That means you have to go through every line of the statute. I haven’t heard your answer to Justice Scalia’s question yet…Where is this line?" When Kneedler reiterated the adminstration’s position that only guaranteed issue and community rating should go, Roberts expressed skepticism. "No, no. That makes your case that the one provision should fall if the other does. It doesn’t tell us anything about all the other provisions."

The most probable outcome is a partial strikedown

These comments by Roberts indicate to me that the most likely scenario is what I’ve predicted for months: that the Court will strike down the individual mandate and all of Title I, which contains the law’s reordering of the private insurance market. On the other hand, the Court is likely to let the rest of the law stand. There’s an outside shot that the Court will strike down Title II, which contains the law’s dramatic expansion of Medicaid, but I’d say the chances are under 10 percent.

One point worth mentioning: the fact that the Court ruled largely in favor of the Obama administration on a controversial Arizona immigration case is interesting. By siding with the administration in that case, and another one regarding juvenile sentencing, the Court has a strong defense in overturning Obamacare. It can respond to sore losers who attack the Court as "political" by pointing out the decisions that it has made in the administration’s favor.

But none of us know for sure.

Original Source: http://www.forbes.com/sites/aroy/2012/06/25/on-thursday-roberts-is-likely-to-write-the-supreme-court-opinion-that-partially-overturns-obamacare/

 

 
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