GEMA Idiocy
The Bricicle of Death

Healthcare Reform in the Hands of the U.S. Supreme Court

The U.S. Supreme Court has decided to hear a case challenging President Obama's signature legislation, the so-called Patient Protection and Affordable Care Act (PPACA).  The most controversial provision, the so-called 'individual mandate', requires almost all Americans to buy health insurance or pay a penalty for not doing so. This is obviously an important piece of the puzzle, since it creates large risk pools, preventing insurers from cherry-picking the best risks. The most important question before the Supreme Court will be whether this provision exceeds the federal government's constitutional power. The lower appeals courts in the U.S. have disagreed about the constitutionality of the individual mandate, with the most recent opinion on the law upholding it:

A three-judge panel on the D.C. Circuit Court of Appeals — comprised of two judges appointed by Republican presidents and one by a Democrat — upheld the constitutionality of a key section of President Obama’s health care law in a ruling released Tuesday.

Senior Judge Laurence Silberman and Judge Harry Edwards ruled to uphold the law — specifically the mandate that requires Americans to purchase health insurance — on the merits. Judge Brett Kavanaugh dissented from their ruling, but he, too, would have ruled against the plaintiffs seeking to overturn the mandate. His opinion argued that federal courts lack jurisdiction to enjoin the mandate, which functions similarly to a tax.

Interestingly, even the conservative judges agreed that the mandate could stand. Their personal policy preference is against federal government power, but their role as judges required them to respect previous Supreme Court decisions upholding pretty wide-ranging power of the federal government to regulate interstate commerce.

Now, political scientists are ginning up their models to predict what the Supreme Court will do. Two of then, Forrest Maltzman and Michael Bailey, recently posted an interesting analysis to the American Prospect blog:

The first scenario relies on a prominent theory of judicial decision-making called the attitudinal model.  It holds that justices are unconstrained policymakers.  To predict and explain Court actions we simply need to figure out the policy implications of the legislation and justices policy preferences.  The vote takes care of itself from that point.... Based on preferences alone, 5 justices, including the “swing” justice Anthony Kennedy, are predicted to vote to overturn the PPACA.... The most likely scenario is a 5-4 decision overturning the PPACA.  Under this scenario, the Court would be a lock to overturn. Goodbye Obamacare.

But wait! Judges' personal political preferences play a role (also in Germany (g)), but respect for previous decisions counts as well:

Given that precedent ... is supportive of upholding the law, we then calculated the predicted vote of each justice based not only on their policy preferences but based on their tendency to defer to precedent.   Deference to precedent varies by justice: Kennedy does so much more than Thomas, for example.

As always, predictions are hard, especially about the future (see Berra v. Bohr) and especially when it isn’t clear which precedents apply or which legal doctrines are likely to dominate. Thus, any specific prediction must go beyond the model.

That said, here is ours: 6-3 or 7-2 to uphold the law.

Respect for precedent pushes Kennedy to support the law and Roberts comes along for the ride in order to keep the opinion out of Kennedy’s hands (and possibly writing an opinion that cabins the Commerce Clause more than it is now).  Alito probably goes with Roberts, but seems more up for grabs.  If we are wrong, expect the justices to either downplay precedent and emphasize other legal values (such as federalism) or play up the few precedents that protect state rights.

Policy motivations won’t be irrelevant, but score this one for law.

I think this is basically right, although I wouldn't be surprised by a 5-4 outcome.