At Supremes’ Mid-Session Recess, Hints on the Individual Mandate
I’ve long thought this November’s Presidential and Congressional elections are far more relevant to the future of the Accountable Care Act than the US Supreme Court’s consideration of the Constitutionality of the individual mandate. On that point, this morning’s WaPo had a new poll showing President Obama with his first clear lead in a hypothetical matchup against Mitt Romney.
The Supremes started their mid-session recess this week and are on track to hear more than 5 hours of oral arguments on the ACA’s individual mandate in March, with a ruling expected at the end of the Court’s session in late June — right smack in the middle of the election season. Court watchers have given some interesting perspectives in the last couple weeks that indicate the ruling is likely to go Obama’s way — and not necessarily by a 5-4 margin.
In the first half of this term, the Court has shown several nuanced positions on thorny partisan issues — a real rarity in Washington in these days of polarization. Court experts say this suggests conservatives — including Chief Justice John Roberts — may bridge the divide between the five Republicans and four Democrats on the mandate. Roberts, in particular, “is very cautious of the institutional credibility of the Court,” said Barry Friedman, a New York University law professor. By achieving unanimity in several major cases thus far, the Roberts Court showed an ability to reach narrow agreement on topics with clear ideological lines. The decisions show that Roberts “is working very hard, as apparently are some of the justices, to ensure that the Court doesn’t draw negative attention to itself” on partisan issues, Friedman said.
In the Citizens United campaign finance decision, Roberts wrote separately to reiterate his commitment to “the important principles of judicial restraint and stare decisis” — or respect for precedent. And there’s plenty of precedent that would support the Congress’ powers to regulate interstate commerce and taxation of economic activity as the mandate does. Adherence to stare decisis is among the “certain decision-making rules that guide [justices’] actions and sometimes prohibit them from acting consistent with their ideological preferences,” said Forrest Maltzman, a professor of political science at George Washington University.
Professor Michael Bailey of Georgetown University said last week, “I just have the sense that Roberts will go in to find a way to uphold the law, but in a way that narrows,” without overturning the key 1942 decision that established Congress’ broad powers to regulate interstate commerce.
In a January interview Professor John Yoo of Berkeley Law, a prominent conservative and former Bush Administration legal adviser, predicted Justice Anthony Kennedy, the Court’s moderate vote, and Roberts would likely to join the four liberals to uphold the Affordable Care Act’s individual mandate. “Roberts cares about the institutional permanence of the Court and protecting it from politics,” Yoo said. “I could see Roberts going with the majority” to exercise his prerogative as chief justice “to control who got to write the opinion to keep it as narrow as possible.”
According to a Kaiser Family Foundation poll released last week, this kind of decision wouldalso be responsive to public opinion. While 67 percent of those polled don’t believe health care reform’s individual mandate is constitutional, half want the the law kept as it is or expanded. Narrowing Congress’ commerce powers without striking down the health care mandate, then, would address the public’s constitutional concerns without changing a law that promotes a policy that most people like.
And as I’ve always said: markets are a better predictor of events than anything. This morning the futures trading site InTrade.com had only a 39.8% chance of the Court ruling against the mandate later this year. My money’s on the Court upholding the mandate, by a 6-3 margin.