The mandate lives! That’s the latest missive from the roller-coaster at the Supreme Court:
The Supreme Court spent 91 minutes Wednesday operating on the assumption that it would strike down the key feature of the new health care law, but may have convinced itself in the end not to do that because of just how hard it would be to decide what to do after that. A common reaction, across the bench, was that the Justices themselves did not want the onerous task of going through the remainder of the entire 2,700 pages of the law and deciding what to keep and what to throw out, and most seemed to think that should be left to Congress. They could not come together, however, on just what task they would send across the street for the lawmakers to perform. The net effect may well have shored up support for the individual insurance mandate itself.
However, Jeffrey Toobin told CNN the fate of President Obama’s health care law looks even worse.
“This still looks like a train wreck for the Obama Administration, and it may also be a plane wreck. This entire law is now in serious trouble. It also seems that the individual mandate is doomed. I mean, Anthony Kennedy spent much of this morning talking about if we strike down the individual mandate, how should we handle the rest of the law? Now, it is less clear that they are going to strike down the whole law. There does seem to be some controversy in the court about that. Certainly there are some members of the court, Antonin Scalia, Justice Alito, who want to strike down the entire law, but it seemed almost a foregone conclusion today that they were going to strike down the individual mandate, and the only question is does the whole law go out the window with it?”
He added: “Well, it’s hard to imagine how things could be going much worse for the Obama Administration.”
First Read looks at the “distinct possibility” that the individual health insurance mandate — and perhaps the entire health-care law — could be decided by another controversial 5-4 Supreme Court decision.
“Such an outcome, especially after other 5-4 decisions like Bush vs. Gore and Citizens United, would have two potential consequences. One, it would feed the perception that the U.S. Supreme Court is as partisan as Congress and increasing parts of the media; in other words, these nine justices (either trained at liberal law schools or members of the conservative Federalist Society) are essentially political actors wearing black robes.”
“And two and most importantly, a 5-4 decision would satisfy no one. If the court strikes down the mandate and the health-care law by that narrow margin, liberals and Democrats would blame it on the conservative justices. If the mandate and law are upheld by a 5-4 decision, conservatives would point their fingers at the liberals and the unpredictable “mushy” swing justice, Anthony Kennedy. That’s the problem with a split decision: The losers would feel like they lost on a political technicality, not because there was a legal consensus.”
Josh Marshall thinks it’s worth noting that the upshot of the anti-mandate arguments being made before the Court this week is that a broadly market based approach like the Romney-Obama model is unconstitutional; but single payer would be constitutional.
Ross Douthat wonders if killing the mandate helps Obama:
If the Supreme Court invalidates the mandate, the justices’ traditional “presumption in favor of severability” will probably ensure that the rest of the legislation remains intact – which might reassure moderate voters that the health care bill wouldn’t actually trample their liberties, because the courts are on the case. Stripping away the law’s most unpopular component might make the rest of it marginally more popular. And setting a clear limit on liberalism’s ability to micromanage Americans’ private decisions might make voters feel more comfortable voting to re-elect their micromanager-in-chief.