Though we learned with the Arizona illegal immigration decision that tough questioning from justices does not mean a Supreme Court slap-down – indeed, Justice Sotomayor was particularly hard on the feds’ position but ultimately upheld its arguments, as did Justice Kennedy and Chief Justice Roberts – I’m betting (with Quin’s money, of course) that Justice Scalia’s quip about the page length of ObamaCare provides a window into tomorrow’s outcome.
During oral argument Scalia brushed aside the suggestion that should the Court rule the individual mandate unconstitutional it would need to reconstruct the law by piecing together the parts that are still valid. Scalia’s response was, “You want us to go through 2,700 pages? Is this not totally unrealistic… to go through one by one and decide each one?”
I think the Court will strike down the individual mandate because it forces Americans to participate in commerce, an unprecedented power grab by the federal government. (Ironically, had the Obama Administration framed the penalty for not buying insurance as a tax, most constitutional scholars on the right and left agree the mandate would survive. However, the reason government lawyers haven’t framed it that way is because Obama and the Democrats in Congress repeatedly and explicitly said no one’s taxes would go up if ObamaCare passed, meaning that calling the mandate a tax during litigation would likely make the entire law even less popular with the public.)
Because of all this, I think the Court will do everyone a favor by holding the individual mandate unconstitutional and finding that the rest of the law is not severable from it. (Which is easy to do since in the rush of ramming the bill around the normal legislative process Congressional Democrats forgot to put in a simple severance clause that would let the rest of the law stand if the mandate falls.)
Thus, everyone gets a blank slate and the Court is not patching together a form of the health reform law that no one voted on or signed.
For what it’s worth, there’s my (or rather Quin’s) two cents.