Today, we learned that the final day of the Supreme Court’s 2011-2012 session will take place at 10 a.m. on Thursday, June 28, and that Chief Justice John Roberts will most likely issue the majority opinion. (I’ll be running a live blog that day over at National Review, beginning at 9:30 a.m.) From what Roberts said at oral argument last March, it’s likely that this means that Obamacare’s individual mandate is going down, but that some of the law will remain intact. Here’s why.Severability is another issue. If you read on in the article you'll see that Roberts was not as adamant about severability as he was the mandate, so that one could go either way. Personally, I think the absence of a severability clause should make this cut and dried - if the mandate is unconstitutional, the whole thing should be tossed. Unfortunately, the courts don't always work that way. They often see things that aren't there and call them there anyway. How do you think we got a right to abortion?
We don’t know for sure that Roberts is going to write the majority opinion, but veteran court-watchers say it’s almost certain, because Associate Justice Anthony Kennedy wrote the majority opinion in the Arizona immigration case that was read today. The Supremes try to rotate the authorship duties around, so that everyone gets their fair share of opinion-writing. After today, Roberts is on deck.
Prior to oral argument in March, it was widely speculated that Roberts would join the majority, no matter which side won, so that he could control the actual opinion that had legal weight in the case. (As Chief Justice, he has that right.) This would mean, most likely, either a 5-4 decision against the individual mandate, or a 6-3 decision in its favor.
Roberts expressed deep skepticism of the individual mandate
However, after oral argument, it became more clear that Roberts was skeptical of the mandate’s constitutionality, and understood that the mandate is really about cross-subsidization, and not personal responsibility. “If I understand the law,” Roberts said, “the [insurance] policies that you’re requiring people to purchase must contain provision for maternity and newborn care, pediatric services, and substance use treatment. It seems to me that you cannot say that everybody is going to need substance use treatment or pediatric services, and yet that is part of what you require them to purchase…You cannot say that everybody is going to participate in the substance use market and yet you require people to purchase insurance coverage for that.”
Roberts was also skeptical that the individual mandate’s consequences could only be limited to health care, because health care is somehow constitutionally unique. “I think that would be a very significant intrusion by the Court into Congress’s power,” Roberts said. “It’s good for you in this case to say, ‘Oh, it’s just [limited to] insurance.’ But once we say that there is a market and Congress can require people to participate in it, as some would say—or as you would say, that people are already participating in it—it seems to me that we can’t say there are limitations on what Congress can do under its commerce power…all bets are off.”
Roberts also ridiculed the idea that the mandate was constitutional because it was a tax, not a penalty. “You’re telling me they thought of it as a tax,” he asked Solicitor General Donald Verrilli, “they defended it on the tax power. Why didn’t they say it was a tax?”
And, as evidenced by the Arizona Immigration ruling, you can't always count on oral arguments to tell you how the case will be decided. We'll just have to wait it out and hope for the best.