An Affordable Care Act Draw
There is a lot of huffing and puffing going on over what the Court will do with the individual mandate. In my view, most of this commentary is a waste of time. First, the notion that any column or blog post would lead a Justice to switch positions in such an important case is ludicrous. Second, I don’t see the point of putting forward new arguments about the underlying issues. If these ideas were so great, why weren’t they included in the briefs or made, you know, when they could actually matter? There will be plenty of time to conduct a post-mortem after the decision.
I did want to mention one possible outcome that could disappoint lots of folks. Suppose the vote goes like this: Four Justices declare the individual mandate constitutional. Four Justices declare that the mandate is unconstitutional. One says “I think that we cannot reach the merits because of the Anti-Tax Injunction Act.” The result would be five votes to reverse the Eleventh Circuit, but no holding on the merits of the constitutional challenge. We would then have to come back in a few years–after the election and perhaps to a different Supreme Court–for a decision on the merits.