Freedom Line Blog

I’ll join the scrum on this one, though in a much less organized fashion than either Ashton or Quin. Insulated as it is from direct political pressure, the Supreme Court’s actions are always much harder to predict than those of the other two branches, so I’ll offer a few thoughts rather than predictions:

• The now widely-held belief that Chief Justice Roberts is writing the majority opinion makes me nervous. The positive interpretation is that some or all of Obamacare is going to be struck down and that Roberts — ever-mindful of public perception of the Court’s legitimacy — is writing it to ensure the widest possible acceptance of the ruling. On the other hand, if Justice Kennedy drifted over to the left on this decision, this could be a 6-3 ruling upholding Obamacare, with Roberts switching only so he could write the opinion and blunt the damage done by the majority.

• If the individual mandate is struck down but found to be severable from the broader law, the health insurance market is going to be thrown into absolute chaos. There’s a reason that insurers themselves were lobbying so hard for the mandate — it’s the only thing that backfills the tremendous costs being imposed on them by the rest of the legislation. The combination of an explosion in costs with likely attempts by HHS to enact price controls will put American health care in a death spiral — itself a good reason to find the provision severable.

• I’m of the opinion that, as a political calculation, having only the mandate struck down is the worst possible outcome for Republicans. If the entire law is upheld, then the GOP and the Romney camp get to run the fall campaign on the message that only electing a Republican president and Republican majorities capacious enough to achieve repeal will be sufficient to get rid of Obamacare. If the entire thing is struck down, then the work is done. But the mandate is the most unpopular portion of the law and if the Court strikes it down while leaving all of the popular components (read: the benefits — like prohibiting insurance denials based on pre-existing condtions or guaranteeing eligibility to be on your parents’ health insurance until the age of 26), it’s entirely possible — and perhaps likely — that the public opposition will be defanged while many of the most pernicious effects of the law remain.

• One final thought: Regardless of whether he’s part of the majority opinion or the dissent, I sincerely hope that Justice Thomas uses this historic opportunity to write a separate opinion on Commerce Clause jurisprudence that can be called on by his proteges in years to come.