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.

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7 Responses

  1. Joe says:

    The law raises various interesting issues and that is what blogs do. If the writers think they are going to change many minds, they are a tad deluded, but if they want to discuss stuff, fine enough.

  2. Ken Rhodes says:

    What he (Joe) said, and then some.

    Remember, many of us who read and appreciate this blog are not authorities on the subject matter, nor even attorneys, but merely concerned citizens who like to be well informed and to learn the issues in more depth than we can from popular media sources. That the posts will not influence SCOTUS debate is no deterrent to my learning from them, and from participating in the discussion threads.

  3. Gerard Magliocca says:

    Well, I meant “waste of time if the goal is to influence the decision.” Far be it from me to say that more discussion is bad for other purposes.

  4. Shag from Brookline says:

    We may never get details of the process of the Court in coming to its decision on ACA. But what if there were some wavering on the part of one or two of the conservative 5? Might word be leaked about a possible change of direction on the part of one or two of the conservative 5 such that those supporting overturning part or all of ACA might publish heavily about pressures being brought to bear by ACA supporters to focus on a possibly vulnerable member (or two) of the conservative 5? If so, who might do such leaking? It’s not unheard of to have such leakage, is it?

  5. Gerard Magliocca says:

    Unheard of in recent decades anyway.

  6. Shag from Brookline says:

    Current day leaking techniques can perhaps be less detectable than was the case described in Peter G. Fish’s “Secrecy and the Supreme Court: Judicial Indecision and Reconstruction Politics” by Peter G. Fish, 8 Wm. & Mary LR 225 (1967), which may explain why it’s “Unheard of in recent decades anyway.” Perhaps “pillow talk” can be ruled out?

  7. Shag from Brookline says:

    And wasn’t there leaking surrounding the Dred Scott decision connected to a Presidential election? Consider that the current Presidential election may be the conservatives’ “dread” Obama moment?

    [Cut to Doris Day’s “Pillow Talk.”]