Supreme Court: Health Care Mystery Unveiled


The conventional wisdom is that the Justices will most likely release one or possibly two opinions that cover the issues.

It is widely believed that the main opinion will be authored or at least co-authored by Chief Justice John Roberts. When the Chief Justice is in the majority he has the power to assign an opinion.

"In a case that is so important and so historic, I think he will want to make sure it is written in a way that can maintain a five-member majority and be as clear as possible on the legal principles," says Carrie Severino, chief counsel and policy director of the conservative Judicial Crisis Network, a fierce opponent of the law. She believes the chief justice will write to strike down the mandate, but she says that even if the court upholds the mandate, "Roberts could possibly write an extremely narrow opinion to try to limit the damage."

For more on the specifics of the Affordable Care Act read here.

Might the court dodge the main issue, that of the mandate? At oral arguments the justices did not seem to indicate that they thought the challenge to the law was premature. The conventional wisdom is that the court will get to the core of the issue and decide whether Congress exceeded its authority under the Commerce Clause, or the Necessary and Proper Clause of the Constitution when it mandated that most every individual buy health insurance by 2014.

But some lawyers and scholars have floated other ways the court might rule.

A year ago, Walter Dellinger, former acting solicitor general of the Clinton administration, predicted the individual mandate would be upheld. "Maybe 7-2," he said at the time.

But in a recent Slate article Dellinger says that oral arguments changed his mind. He said the government was subjected to questions that were hostile "often bordering on heckling" by the conservative justices.

He thinks the justices might come up with a "middle way" of resolving the case. According to Dellinger, the court would in essence divide the minimum coverage provision into the "mandate" and the "penalty." Strike down the mandate, but uphold the penalty. "The provision stating that everyone must obtain coverage" would be deemed unconstitutional, but the "linked provision imposing modest financial incentives to have coverage is acceptable and can stand."

"The practical effect would be to uphold all the provisions of the Affordable Care Act, while firmly planting a liberty flag that would limit future Congresses."

Dellinger's predictions set off a buzz in Washington among constitutional scholars who have found themselves with a lot of time on their hands waiting for the health care decision to come down.

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