Reading Tea Leaves on Obamacare's Survival
This week's Obamacare oral arguments may be over, but the Supreme Court isn't expected to issue its opinion in the case until June. That means legal experts have months to venture their own guesses about whether the court will take an ax to the President's signature legislative achievement. Here's what they're telling publications around the country. What's extraordinary is how varied the opinions are from scholars and legal experts of every stripe:
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Henry T. Greely, Stanford professor of health law and policy [Los Angeles Times]
Right now I'd say it looks like there are clearly four justices in favor, three opposed and [Justice Anthony M.] Kennedy somewhere in between, and Chief Justice [John G.] Roberts with leeway to go either way.... I think on the individual mandate the chances are better that it will survive than go down. I would be surprised if Justice Kennedy wanted one of his most memorable acts to be this. Is this how he wants to be remembered? Look at his record on gay issues. I think he cares about his legacy.
Jeffrey Toobin, CNN's senior legal analyst and New Yorker staff writer [CNN and Politico]
I think the individual mandate is gone, based on the questioning. It sure looks like there are at least five votes to get rid of ... the individual mandate ... this morning was unbelievable. It was like a given that they're throwing out the mandate. Anthony Kennedy was like, 'Well, when we throw out the mandate...' -- Do you know what a huge deal that is? It's a huge deal in American history, not in the news cycle. If this happens, it's not since the first term of Franklin Roosevelt that the Supreme Court has thrown out the central domestic achievement of a president. That's very important. And yet today they were talking about it as if it's a fait accompli.
Ilya Shapiro, senior fellow in constitutional studies at the liberation Cato Institute [Los Angeles Times]
I think they will unanimously get past the anti-injunction issue [that bars legal challenge of taxes before they are paid]. Then I agree with the conventional wisdom that Kennedy is the swing vote on the individual mandate and I think it's more likely than not that they will vote to strike it down. On severability [whether the rest of the law survives without the mandate], that is less easy to predict.
Brad Joondeph, a Santa Clara University law professor and a former law clerk for Justice Sandra Day O’Connor [Politico]
“The oral argument was much more important to us than it was to [the Supreme Court justices]. In a case of this magnitude, the idea that was said at oral argument could change the outcome is probably fanciful. [On medicaid expansion] I tend to think the most likely outcome would be to say something to the effect of what they’ve said in prior cases, which is: There might be some programs that are coercive, but this one is not.”
Akhil Reed Amar, Sterling Professor of Law and Political Science at Yale [The Washington Post]
Yesterday was profoundly disheartening. Until yesterday, almost no top constitutional law scholar was saying anything like this. Smart conservatives on the lower courts, like Jeff Sutton and Larry Silberman and Brett Kavanaugh, were saying, what are you talking about? But there has been this normalization process.
Mark Kende, law professor at Drake University [Des Moines Register]
Overall, it’s hard to predict how the Court would rule on severability, but many experts find it hard to believe the Court will strike down an addition to the long-established Medicaid program ...At the same time, the Supreme Court’s overall approval ratings are declining so that might make them cautious about issuing a blockbuster decision.
