I don’t think so. As we approach three days of oral argument before the Supreme Court beginning tomorrow morning (Monday, March 26), I’m ready to record my fearless predictions:
1. The first question for the Court is whether the constitutional challenges to the Affordable Care Act are barred by the Tax Anti-Injunction Act (which generally precludes challenges to a tax law until someone actually pays the tax). Although both the challengers and the U.S. Government take the position that the Anti-Injunction Act is not a barrier to the litigation, the Court, at the suggestion of the Solicitor General, appointed a private lawyer to brief and argue the case as amicus curiae in support of the proposition that the challenges are premature. This is the issue on which the Court will hear oral argument on Monday. If the Court rules that the Anti-Injunction Act applies, the challenges to the so-called individual-mandate provision of the Act (which requires most individuals either to purchase health insurance or to pay a tax penalty if they fail to do so) will be dismissed, and the constitutionality of that provision will not be resolved until 2015.
This is a significant issue. The Court of Appeals for the Fourth Circuit held that the Anti-Injunction Act barred the litigation, and a well-respected conservative judge on the D.C. Circuit, dissenting from that court’s decision upholding the statute’s validity, likewise took the position that the pre-enforcement constitutional challenges are premature.
Even so, I put the odds at about 60-40 that the Court will hold that the Anti-Injunction Act does not apply.
2. On the constitutional issue, I believe that the Court will uphold the statute by a lopsided vote, possibly 7-2 or even 8-1. The four Democratic appointees (Ginsburg, Breyer, Sotomayor, and Kagan) will almost certainly conclude that the individual mandate is constitutionally valid. I think that Roberts, Kennedy, and Alito are also likely to vote that way. And, contrary to what most observers assume, I believe that Scalia is at least as likely to uphold the statute as to strike it down. Thomas is the only Justice who I think will definitely vote to invalidate the individual mandate. I further predict that Chief Justice Roberts will write the opinion for the Court and that several other Justices will write separate concurring opinions to emphasize the limits or implications of the ruling.
Predicting how the Supreme Court will rule is always a hazardous enterprise, and I may well turn out to be dead wrong. If so, I will promptly return to this blog to confess error. I may also revise and extend my remarks after I have had a chance to listen to the audio recordings of the coming week’s oral arguments. If you would like to listen to the recordings or read the argument transcripts yourself, you will be able to find links to them on the Supreme Court’s website by the afternoon of the day of the argument.
By the way, if you think that the term Obamacare is in some way pejorative, you should know that the Obama reelection campaign has itself proudly embraced the term.
Finally, for a simple but useful primer on the upcoming oral arguments — including the legal issues and why they matter — take a look at this Wonkblog guide.