ObamaCare on the Ropes?

On Friday, the members of the Supreme Court will meet together and voice their positions on the Patient Protection and Affordable Healthcare Act. Prior to the three days of arguments, most pundits were skeptical that the Court would strike the law. However, in reading the tea leaves after argument, the bet is that swing-vote Anthony Kennedy will join Roberts, Thomas, Scalia, and Alito in holding that Congress has exceeded its powers by commanding all Americans to buy health insurance or face a penalty. The five, based on the questioning and comments, seems to agree that forcing Americans to buy a product is markedly different from any other action Congress has taken via the Commerce Clause.

As for the arguments that the individual mandate is also constitutional under Congress’ power to tax, even the liberal justices seemed uncomfortable with this. Ginsburg pointed out the obvious that the penalty was not a revenue raising measure and the conservatives clearly viewed the mandate as a gross abuse of the tax power.

The five conservatives were even skeptical of the Medicaid expansion. The modern Court has held that there are virtually zero limitations on the so-called spending power. That is, Congress can tax and offer money to the states with very onerous requirements. The requirements, the Court has held, do not have to bear any relation to the enumerated powers. But in the arguments, the conservatives seemed very receptive to the idea that Congress’ conditions on money may be such that the states are deprived of their sovereignty and dignity–so much so that conditions can be unconstitutional.

The real question left after the argument is not whether the Court will oppose ObamaCare, but whether the Court will strike the entire law or just certain parts of it. Scalia clearly wants to throw the entire thing into the garbage, but the others seem content to leave the ancillary parts of the Act alone, even of the individual mandate–the driving force behind the reform–is tossed.

It was not a good three days for the Administration. We will probably see an opinion by late June.