Supreme Court may uphold health care after all
The justices of the U.S. Supreme Court sit for their official photograph Oct. 8, 2010, at the Supreme Court in Washington. From left to right, front row: Associate Justice Clarence Thomas, Associate Justice Antonin Scalia, Chief Justice John G. Roberts, Associate Justice Anthony M. Kennedy and Associate Justice Ruth Bader Ginsburg. From left to right, back row: Associate Justice Sonia Sotomayor, Associate Justice Stephen Breyer, Associate Justice Samuel Alito Jr. and Associate Justice Elena Kagan. / AFP/Getty Images
Las Vegas hasn't posted odds on whether the Supreme Court will reject health care reform. But the American Bar Association (PDF) has done the next best thing. As part of a special publication devoted to the case, the ABA surveyed a group of veteran observers and asked them to predict the outcome. The results? Eighty-five percent predicted that the court will uphold the law.
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The ABA won't say how it picked the experts; it promised anonymity to guarantee candor. So make of the results what you will. But those experts seem to be part of a broader consensus. In conversations over the last year, the legal experts I know have also predicted that the court would uphold the law: Most seem think the odds are about two to one, or something close to it. Intrade seems to agree.
But more interesting than the top-line numbers from the survey are the predictions of how individual justices will vote. The experts ABA surveyed were unanimous in predicting that the four liberal justices (Stephen Breyer, Elena Kagan, Sonia Sotomayor, Ruth Bader Ginsburg) would vote to uphold and that Clarence Thomas would vote to strike it down. Fifty-three percent said Anthony Kennedy would join the liberals, but a higher proportion, 69 percent, thought Chief Justice John Roberts would join the majority. Majorities of about 60 percent predicted that the other two conservatives, Samuel Alito and Antonin Scalia, would determine the law is unconstitutional.
Why would experts think Roberts more likely to uphold than Kennedy? I really have no idea, although I've pinged a few law professors to see if they have theories. (Readers with legal knowledge should feel free to speculate in the comments.) The best I can offer is this: Given the near certainty that all four liberal judges will vote to uphold, a vote to strike down the law, even in part, would have to be five-to-four and it would have to break down along party lines. Maybe they think Roberts doesn't want to go there, at least for a cause -- limiting the commerce and "necessary and proper" powers -- that's not a particular passion of his. (One informed legal observer suggested to me that Roberts is far more interested in rolling back the Voting Rights Act, as he's already started to do.)
A more carefully reasoned explanation for why the law seems likely (although far from certain) to survive comes from Richard Primus, a former Ginsburg clerk who is now a professor of law at the University of Michigan. And it's an interesting explanation, if you're following this case, because the source of Primus' relative confidence is the very case that gives so many of the law's defenders anxiety: United States v. Lopez.
The subject of Lopez was a federal law banning gun possession near schools. The government cited its right to regulate interstate commerce as justification for the law. A five-to-four majority rejected that argument, saying that states could handle the matter on their own. In so doing, the majority, led by Chief Justice William Rehnquist, established a limit on the commerce clause power -- something the court had not done since the New Deal. Critics of the Affordable Care Act hope (and advocates of the law fear) that the court's willingness to limit the government's interstate commerce power in that cause mean it might do the same in this one.
Writing in the Michigan Law Review, Primus takes a different view. He wonders whether Lopez might end up saving the Affordable Care Act. He starts by calling the Affordable Care Act an "easy case" on the merits: "Under existing doctrine, the provision is valid as can be." Still, he acknowledges, the justices believe in the idea that the federal government has only the powers enumerated in the Constitution. They would be hesitant to write a decision that appeared to allow for the possibility of boundless federal power.
That's where Lopez might come in handy. To simplify Primus' argument a bit, he thinks Lopez could put the justices' minds at ease. Having already established that the power to regulate interstate commerce has limits, Primus suggests, they might not feel compelled to do so again. What's more, the Lopez decision led to subsequent decisions -- most important among them, Gonzales v. Raich -- in which the court specified with more detail the limits of the commerce power. And the health care mandate falls clearly within them.
In other words, Lopez signaled a willingness to roll ball federal regulatory economic authority, something that hadn't existed since the New Deal. But, in this particular case, Lopez might make the justices more comfortable upholding the law.
I'm well into the weeds of legal theory now, I realize, and a bit out of my depth. But if you care about this stuff, read the Primus article. And maybe keep an eye on Intrade.
Jonathan Cohn is a senior editor at The New Republic. The opinions expressed in this commentary are solely those of the author.
If they strike this down it is clear they are being paid and operated by the greedy American corporations and should be impeached (at least the ones who vote against the law).
To pass this healthcare plan; with it's mandate; will only heat up Obama to create more Constitution-desctruction mandates.
Passage of this plan will go straight to his already over-inflated ego, amd encourage him to do more damage to the US.
Between this and Executive Privilege, the US is doomed to become the Socialist United States of America.
Without the mandate Obamacare is no-more.
SIX hours for a 2,000 page document.!!!
No wonder the US is in such a sad state of affairs.
You think the US is in a sad state of affairs?
If you cannot afford to pay for your own, the government will help you pay for it.
It's called Medicaid.
It is the middle class; which Republicans are dead set on destroying ;who will suffer.
As far as the government is concerned; the middle class has not suffered enough.
They let Wall Street, big banks and mortgage lenders rob people of their homes, their pensions, their savings, their retirement funds, etc. and turned arounf and rewarded them with bailouts from more middle class people.
Go back a number of years and you will discover that they robbed American taxpayers once before when they decided to raid the Social Security Trust Fund.
Now; years later; the United States is multiple TRILLIONS of dollars in debt, and they want taxpayers to pony-up these trillions to cover their thieving *****.
Among other things; Obama is going to try to sneak HR4646 in right before or right after the 2012 election.
This means you will pay a 1% TAX to the US government for every banking transaction you make.
If you get $1,000 a month from Social Security; you will have to pay the government $10 for the privelege of cashing your check or having it deposited in your checking account.
Write a check for your mortgage (if you can get one) and pay 1% for the privilege of paying your mortgage, or your electic bill, or your phone bill, or the bill for your mother's nursing home fees.
Use your credit or debit card..pay a 1% tax for spending your own money.
Same goes for any transaction on the internet.
Sell your home for $350,000 and you will pay $35,000 for the privelege.
Suggest raising taxes on the wealthy, big business, taxing oil companies on their billions in profits and politicians like John Boehner will try everything; including blackmail to keep this from happening.
It couldn't possibly be because the huge contributions to their political campaigns (better know as bribes by lobyists, the NRA etc) would not be availabe to fund their bid for election or re-election could it.??
Once again; in the 2012 election; Americans are going to have to choose between evil and more evil and just pray to GOD they didn't pick the wrong one.
TRANSLATION: We're damned if we do and damned if we don't.
How did millions of Americans ever let this happen.??!!!