Okay, to all my fellow…er, my fellow Fellows of CFIF: Last chance to get in your updated predictions on how the Supreme Court will rule on ObamaCare.<\/p>\n
I’ll see what you come up with before I reveal my hand (gee, isn’t that clever of me?) — but I WILL offer this outside-the-box scenario as a remote but not entirely-out-of-the-question possibility. To wit:<\/p>\n
We could see a typical Kennedy \u201csplit the baby\u201d sort of decision: the mandate unconstitutional, on narrow and tentative grounds, with a remand to lower courts to decipher some Delphic question from Kennedy about how best to separate the mandate from the rest of the law.<\/p>\n
The good news \u2014 and this would be a stunner \u2014 is that I think there is a small chance that if Kennedy doesn\u2019t just split the baby, but slices into about four pieces, then Justice Sotomayor might concur in part that \u201cas applied,\u201d the mandate is unconstitutional. If so, that would mean that while the end result could be quite a muddle and the size of the victory (in law, not politics) would be very small, the POLITICAL upshot would be huge in that even a small acknowledgement by an Obama appointee that the mandate went too far would take away some of the ability for Obama to bash the court as a campaign issue.<\/p>\n
Granted, most people now think that Roberts, not Kennedy, will write the main decision, based on who has written what other decisions when, during this term. But it would be perfectly feasible for Roberts to write a plurality opinion rather than a majority one, while Kennedy wrote a concurrence with the narrow result of ruling this mandate unconstitutional (and Sotomayor joining in part) \u2014 so that the narrow result would have a majority, but the major reasoning would have only a plurality, with Kennedy\u2019s concurrence actually being controlling in terms of what happens next (e.g. some sort of weird remand).<\/p>\n
Of course, maybe somebody piped some bath salts into my room and I\u2019m hallucinating. This is all too complicated by half. It\u2019s probably just what happens when I\/we have too much time to speculate.<\/p>\n
On the other hand, the high court has done weird things like this before. With Kennedy in the mix, anything is possible.<\/p>\n","protected":false},"excerpt":{"rendered":"
Okay, to all my fellow…er, my fellow Fellows of CFIF: Last chance to get in your updated predictions on how the Supreme Court will rule on ObamaCare. I’ll see what you come up with before I reveal my hand (gee, isn’t that clever of me?) — but I WILL offer this outside-the-box scenario as a […]<\/p>\n","protected":false},"author":12,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[1902,941,35,93,92],"class_list":["post-14806","post","type-post","status-publish","format-standard","hentry","category-posts","tag-anthony-kennedy","tag-john-roberts","tag-obamacare","tag-sotomayor","tag-supreme-court"],"_links":{"self":[{"href":"https:\/\/cfif.org\/v\/freedom_line_blog\/wp-json\/wp\/v2\/posts\/14806","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/cfif.org\/v\/freedom_line_blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/cfif.org\/v\/freedom_line_blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/cfif.org\/v\/freedom_line_blog\/wp-json\/wp\/v2\/users\/12"}],"replies":[{"embeddable":true,"href":"https:\/\/cfif.org\/v\/freedom_line_blog\/wp-json\/wp\/v2\/comments?post=14806"}],"version-history":[{"count":4,"href":"https:\/\/cfif.org\/v\/freedom_line_blog\/wp-json\/wp\/v2\/posts\/14806\/revisions"}],"predecessor-version":[{"id":14822,"href":"https:\/\/cfif.org\/v\/freedom_line_blog\/wp-json\/wp\/v2\/posts\/14806\/revisions\/14822"}],"wp:attachment":[{"href":"https:\/\/cfif.org\/v\/freedom_line_blog\/wp-json\/wp\/v2\/media?parent=14806"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/cfif.org\/v\/freedom_line_blog\/wp-json\/wp\/v2\/categories?post=14806"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/cfif.org\/v\/freedom_line_blog\/wp-json\/wp\/v2\/tags?post=14806"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}