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Monday, April 23, 2012

Being a Supreme Court junkie and one who teaches a course on landmark decisions of SCOTUS, one of the best sources for information about current activity is the SCOTUS blog where senior Supreme Court reporter Lyle Denniston writes comprehensive and thorough pieces on current cases and issues.  His review of the Affordable Health Care Act is a marvel and should be read by anyone who wishes to speak intelligently about it.

I listened to the oral arguments before the court regarding the constitutionality of the ACA (available here) and was disappointed by the presentation of the Solicitor General.  I think there are three possible outcomes at this point:

1.  The plaintiffs have no standing because of the Anti-Injunction Act (a late 19th century bill that prohibits anyone filing suit or seeking an injunction against a tax before that tax has been collected or taken effect.) This is my favorite outcome and the least likely to hurt the Court. It also makes the most sense since the individual mandate doesn't take effect for some time and no ones knows what its effect will be.

2.  The court rules the individual mandate unconstitutional but the remainder of the legislation unconstitutional. This would be a disaster for insurance companies since they would have to implement the very popular aspects of the bill (can't cancel policies of people who get sick, children covered until age 26, etc.) that rely cost them money without the increased revenue of the mandate.  This related to the sever-ability of the mandate, the government arguing that without it all the rest would fail.  The justices spent a lot of time talking about the impact on the insurance companies; very little on the impact of you and me.   Which tells you a lot about the justices POVs.

3.  The entire bill is unconstitutional.  This outcome would make a mockery of the court.  As Scalia pointed out, he had no intention of reading the entire 2700 pages of the bill, so for them to dump the entire legislation would simply mean the so-called non-activist conservatives who don't want to presume legislative prerogatives are doing just that, setting policy, and without having even read the legislation they want to condemn.  Then again, I doubt if Romney has read it either even though it's based on his Massachusetts legislation (not to mention the basis for it all came from the Heritage Foundation in 1991 as a way of combating Clinton's national plan and was intended to eliminate free-loaders.)

Whatever they do, I hope it's NOT a 5-4 decision which will make everyone even more cynical than they are already.
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