Wednesday, June 27, 2012

Obamacare predictions

I was going to title this post "D-Day," but then I saw that Linda Greenhouse already has a post by that title up at the New York Times. That would have been embarrassing.

Anyhow, tomorrow is going to be a fun day for followers of the Supreme Court, like us, with the Obamacare decision coming down at around 9:15 central time. I thought I would point out that a few of the very first posts on this blog—almost two years ago, now!—were about the individual mandate. Back then we agreed that the Court would likely uphold the law—Mr. Gillette opined that he thought the individual mandate is "really a fairly straightforward application of Wickard v. Filburn," and I predicted the Court would reach for the Necessary and Proper clause but "there's no way Justice Kennedy is going to sign on to a decision that strikes down this bill."

Of course, what do we know? Devoted reader(s) of the blog know the answer to that question all too well. But at least Linda Greenhouse agrees with us.

For what it's worth, I'm sticking to my guns. Also, I'll reveal a policy preference. I hope the Court upholds the law on very narrow grounds. What I'm hoping for is an opinion that recognizes that the individual mandate presents a novel question of federalism, but finds that it passes muster because of the unique characteristics of the health insurance reform. That way, the decision could act as a check on federal power (by explaining that broad individual mandates will be subject to searching review) and reaffirm that the federal government has broad power to fix problems of national scope in creative ways.

Any last thoughts, Mr. Gillette? Are you going to change your prediction?


1 comment:

  1. I guess I won't change my prediction (although all the pundits going bonkers about the oral argument initially made me a little jumpy). How about I predict this: if we are right that Kennedy votes to find Obamacare consitutional, then I ppredict Chief Justice Roberts will too and the Chief Justice will write the opinion. Also, Scalia's dissent (and he will dissent given that his book with Bryan Garner apparently discusses how Wickard was wrongly decided) will be so over the top that it will make his dissent in the Arizona case look modest and well-reasoned by comparison.


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