Will the Supreme Court strike down health care reform?

Now that oral arguments are done, everyone who is not a Supreme Court judge has to wait for three months to see if the Court will rule the individual mandate Constitutional or Unconstitutional. As if that weren’t enough, the justices can also strike down some or all of the rest of the law, if they decide they want to. I have no idea what the outcome will be, btu I can see the arguments from both sides. So, here are the best arguments that “they will uphold the individual mandate” and “they will rule it unconstitutional.” The con first:

The Justices will rule the individual mandate Unconstitutional.

The Supreme Court is divided between five conservative justices and four liberal justices. The conservative justices have shown themselves more than willing to ignore prior case law and hand down decisions which confirm to their own political beliefs. They tossed out decades of campaign finance law in Citizens United v FEC and revealed themselves as a political branch in Bush v Gore. What’s more, this is the most conservative Supreme Court in decades, so if  any Court is going to strike down a major accomplishment of a Democratic President, this will be the one. The conservatives are also very worried about the possibility that if they uphold this law, then Congress will have no limit on its power to regulate commerce.

During oral arguments, the Court revealed themselves as pretty hostile to health care reform. Before oral arguments, most commentators assumed the Court would uphold the entire law. Now, court-watchers think there’s only a 50-50 chance (maybe worse). Kennedy and Roberts, the conservatives most likely to side with the Obama administration, were very skeptical about the Constitutionality of the law. Worryingly, they also parroted some of the opposition’s lines when they questioned the Solicitor-General, showing they probably are thinking about the case in the same way as the law’s opponents. Scalia seemed willing to disregard his previous ruling in Gonzales v Raich in order to strike down this law. In short, the future does not look good for health reform.

The Justices will rule the individual mandate Constitutional.

Everyone who is very worried about the Government’s poor job in oral arguments is missing the fact that those arguments rarely determine the case. The written briefs and the environment of the case are much roe deterministic. The environment of the case should swing in the health care law’s favor. Chief Justice Roberts and Anthony Kennedy want to preserve the aura of independence and impartiality surrounding the Court. They do not want it to be labeled as the third political wing of the government. They care about the Court’s reputation far too much to strike down a President’s greatest accomplishment on shaky technical grounds. Also, upholding the law may give them much more latitude to strike down parts of the Civil Rights Act or the acceptability of affirmative action, which are things they care about far more than the Commerce clause.

As a friend pointed out to me, the legal case for the law is pretty simple:

The main argument that opponents of the health-care law have come up with is that the mandate regulates economic inactivity—i.e., not buying insurance—and the Commerce Clause allows only the regulation of economic activity… The [Sixth Circuit] court pointed out that there are two unique characteristics of the market for health care: “(1) virtually everyone requires health care services at some unpredictable point; and (2) individuals receive health care services regardless of ability to pay.” Thus, there was no such thing as “inactivity” in the health-care market; everyone participates, even if he or she chooses not to buy insurance.

The legal contortions the conservatives would have to go through to strike this down would be enormous and the precedent set by such a ruling would probably make Social Security and Medicare privatization (other important conservative goals) impossible. Therefore, the Court will probably grudgingly rule in the law’s favor.

So which argument do you believe?

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