Sometime this morning, the Supreme Court of the United States of America will rule on the challenge to the Patient Protection and Affordable Care Act (PPACA), known popularly as "Obamacare". There are a lot of scenarios about how the ruling could ultimately go, and with a few hours left in which to honestly predict the outcome, I am ready to make mine. This post is written at 0600 on the 28th of June.
Like many complicated cases, this one will ultimately have several rulings bound up in it. My prediction is that there will be two actual "decisions" or "votes".
The first will be on the constitutionality of the "mandate" to purchase health insurance under the PPACA. As the government argued this under its "commerce" authority (rather than its taxation authority), it will be found unconstitutional, and there will be AT LEAST SIX votes that affirm this--Roberts, Scalia, Thomas, Alito, Kennedy and Sotomayor.
The second question then, is what is to become of the "rest of the law"? If the mandate is struck down, then is the entire law unconstitutional? Or is only the provision regarding the mandate unconstitutional?
This question will ultimately turn on the issue of severability. The then Democrat-controlled Congress--which understands severability and used standard severability language routinely in its acts, chose not to insert severability clauses in PPACA. Some believe that this was a strategic decision, one that attempted to "bind the hands" of the Supreme Court by making the negation of the law into such a huge, national issue that the Court would be less willing to invalidate it.
The entire law will be struck down by the Court, and there will be five votes to do this--Roberts, Scalia, Alito, Thomas, and Kennedy.
The language they will use in their decision will anticipate the criticism they are sure to receive--that the Court is engaging in "judicial activism", something conservatives accuse liberal judges and justices of all the time when they appear to legislate from the Bench.
The majority will assert that given their decision to invalidate the mandate, the "least activist" path--i.e. the one in which the Justices infringe the LEAST on Congressional prerogative--is to invalidate the entire law. That is, rather than having unelected Justices essentially "re-write" the PPACA by removing its heart and funding mechanism (something considered essential to the law by its drafters) and leaving the rest intact, invalidating the law gives Congress the MOST latitude to replace or revise the Act.
You heard it here first.