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Most Former Supreme Court Law Clerks Believe Mandate Will Be Struck Down

The one group of people who may know the most about how the Supreme Court works think its likely that the Affordable Care Act’s individual mandate will struck down:

A new survey of 38 former clerks of current Supreme Court justices and 18 attorneys who have argued cases before the high court found that most of them think the court will rule that the individual mandate is unconstitutional. The mandate is the centerpiece of the Obama administration’s signature health care law and it is unknown whether the law can survive without that piece.

The American Action Forum and Center Forward, which commissioned the survey (pdf), also commissioned one before oral arguments.

In March, those respondents — on average — said there was only a 35 percent probability that the a “SCOTUS majority” would find the mandate unconstitutional. After arguments that average went up to 57 percent.

“I feel like a dope, because I was one of those who predicted that the Court would uphold the statute by a lopsided majority — maybe even 8-1. Although you never know, it now appears pretty likely that this prediction was way off,” one of the respondents wrote in his survey.

Another one said it was a toss up: “5-4, either way.”

Another called also called it a toss up, but they expanded on how their thinking has changed: “The case largely depends on which way Kennedy and to a lesser extent Roberts go. Before oral argument, I thought the plaintiffs had a 35% chance. The argument led me to up that estimate to 50%,” the respondent wrote.

Seventy percent of respondents also said that the “the justices questioning indicated that they were more skeptical about the law’s constitutionality than I had expected.”

That last point, I think, is the one that rings true for so many observers of this case. Even in the face of the decisions by a Federal Judge in Florida and a panel of the 11th Circuit Court of Appeals, the general consensus seemed to be that the Court was far more likely to uphold the law than strike it down. It wasn’t till March’s oral arguments, and specifically the reaction of Justice Kennedy, that it became clear that the law was in peril.

 

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. al-Ameda says:

    The American Action Forum and Center Forward, which commissioned the survey (pdf), also commissioned one before oral arguments.
    In March, those respondents — on average — said there was only a 35 percent probability that the a “SCOTUS majority” would find the mandate unconstitutional. After arguments that average went up to 57 percent.

    After hearing Justice Scalia use the conservative movement’s “Broccoli” talking point I figured the the deal was done. I’m sure that the former Clerks have a more nuanced take on this, but I think it’s done. The only question is whether they throw the whole thing out, or toss the mandate and let Congress deal with the rest. Either way, it’s a huge conservative victory.

    Like or Dislike: Thumb up 1 Thumb down 3

  2. Mr. Prosser says:

    I think it may be a “huge conservative victory” in the short term, but as James wrote quite awhile back, taking out the mandate and leaving the rest greases the skids toward single payer. Not a bad thing in my view.

    Like or Dislike: Thumb up 5 Thumb down 1

  3. al-Ameda says:

    @Mr. Prosser:

    I think it may be a “huge conservative victory” in the short term, but as James wrote quite awhile back, taking out the mandate and leaving the rest greases the skids toward single payer. Not a bad thing in my view

    I hope you’re right. Bill Maher has asserted that Obama should have just extended Medicare to the rest of us. When ACA was in the making I knew it was going to be a colossal mess when a Public Option was off the table.

    Like or Dislike: Thumb up 5 Thumb down 1

  4. Liberty60 says:

    I don’t know why Scalia and Thomas don’t simply ask the petitioners point blank: ” Will this law help the Republican Party achieve electoral victory? Will it increase the power and freedom of the 1%? Will it shred the social safety net?”

    This way the court opinions could be more easily understood, without having to wade through hundreds of pages of legalese which amount to the same result.

    Like or Dislike: Thumb up 9 Thumb down 5

  5. Tsar Nicholas says:

    What’s sort of funny about all this, in the vein of black comedy, is that if the law is upheld the people who’ll probably cheer the loudest will be young unemployed liberals, completely insouciant to the fact that one of the reasons why they can’t get jobs and are stuck living with their parents is because companies are so hell bent on keeping themselves under 50 total workers and thus outside of the law’s deadly reach.

    In any event, if the entire law is thrown out it’ll be great news for the country. If the law is upheld it’ll be a disaster of European proportions. If the mandate is thrown out but the remainder of the law is upheld it’ll turn the law even into more of a calamitous unfunded mandate and thus it’ll be a disaster of European proportions with a quicker arrival date.

    Like or Dislike: Thumb up 3 Thumb down 8

  6. superdestroyer says:

    @al-Ameda:

    Medicare has the lowest reimbursement rates of any program. Medicare for all would greatly reduce the supply and would lead to millions of healthcare workers being laid off.

    Medicare for all would cause the government to increase reinbursements without raising taxes and would just lead to a financial disaster faster.

    Like or Dislike: Thumb up 3 Thumb down 4

  7. MBunge says:

    “the general consensus seemed to be that the Court was far more likely to uphold the law than strike it down.”

    And why was that?

    Mike

    Like or Dislike: Thumb up 1 Thumb down 1

  8. MBunge says:

    @Tsar Nicholas: “one of the reasons why they can’t get jobs and are stuck living with their parents is because companies are so hell bent on keeping themselves under 50 total workers and thus outside of the law’s deadly reach.”

    I’ve seen some liberals worried that if Romney wins, he’ll get credit for the economic recovery they think is inevitable. The fact that such idiocy as the above if common wisdom amongst the folks who’ll be running our government under Romney should put that fear to rest.

    Mike

    Like or Dislike: Thumb up 2 Thumb down 2

  9. Eric the OTB Lurker says:

    @Tsar Nicholas:

    young unemployed liberals, completely insouciant to the fact that one of the reasons why they can’t get jobs and are stuck living with their parents

    Really? Only liberals are unemployed and living with their parents? Any data to back this up?

    companies are so hell bent on keeping themselves under 50 total workers and thus outside of the law’s deadly reach.

    I’m sorry, is this statement a fact, or do you “just know” it’s true? Evidence? Links? Anything to back it up with something other than cock-sure self-righteousness and pixie dust?

    Like or Dislike: Thumb up 4 Thumb down 1

  10. al-Ameda says:

    @Tsar Nicholas:

    If the law is upheld it’ll be a disaster of European proportions.

    I didn’t realize that european single-payer health insurance systems were a disastrous failure.

    Like or Dislike: Thumb up 6 Thumb down 1

  11. Gromitt Gunn says:

    It will be a real shame if it gets overturned. As I have noted before, the one thing that keeps me from jumping from working for a state government to being self-employed is that due to chronic conditions I am completely ineligible for individual health insurance. I’ve been really hoping that the exchanges will go through so that I can finally open the small business that I’ve had on the drawing board since I got my CPA license.

    Like or Dislike: Thumb up 5 Thumb down 1

  12. Scott O. says:

    @MBunge: Possibly because the individual mandate has always been a conservative alternative to a single payer system, supported by many Republicans? Romney is one prominent example. Or maybe because the idea that the mandate is unconstitutional was a somewhat fringe idea until it became part of Obama’s plan?

    Ezra Klien has an article about this. He is a liberal which is enough for some people to dismiss everything he writes but I think he makes some good points.

    “The fact that a judge—even a partisan judge in a district court—had ruled that a central piece of a Democratic President’s signature legislative accomplishment was unconstitutional led the news across the country. ….. Voters who hadn’t thought much about it now heard that judges were ruling against the Administration. Vinson and Hudson were outnumbered by other district judges who either upheld the law or threw out lawsuits against it, but those rulings were mostly ignored.”

    “When judges ruled against the law, they got long front-page stories. When they ruled for it, they got shorter stories, inside the paper. Indeed, none of the cases upholding the law got front-page coverage, but every rejection of it did, and usually in both papers. From an editorial perspective, that made sense: the Vinson and Hudson rulings called into question the law’s future; the other rulings signaled no change.”

    Like or Dislike: Thumb up 2 Thumb down 1

  13. James Joyner says:

    @al-Ameda: A “Medicare for the rest of us” law would have been both obviously Constitutional and wildly popular. It would also have actually done something to bring down costs.

    Like or Dislike: Thumb up 4 Thumb down 1

  14. John Cole says:

    @James Joyner: They couldn’t even get the votes to lower medicare to age 55, let alone medicare for everyone.

    Also, I’m not sure if you are aware of this, but one party is running on the Ryan plan, which ends medicare as medicare. Not sure how you balance that with the idea that “Medicare for the rest of us” would ever pass.

    Like or Dislike: Thumb up 7 Thumb down 2

  15. Buzz Buzz says:

    @John Cole:

    one party is running on the Ryan plan, which ends medicare as medicare

    It doesn’t surprise me that the OTB drones are still pushing this talking point, which was so obviously wrong that not even the liberal Politifact could stomach trying to defend it:

    Politifact Lie of the Year 2011: ‘Republicans voted to end Medicare’

    Like or Dislike: Thumb up 0 Thumb down 6

  16. ratufa says:

    @James Joyner:

    A “Medicare for the rest of us” law would have been both obviously Constitutional and wildly popular. It would also have actually done something to bring down costs.

    I think it’s fairly clear what the Republican media campaign would have been if Obama had seriously pushed “Medicare for the rest of us”:

    – Seniors would have been warned that adding people to the Medicare pool would mean worse care for them, both because of budget constraints and the overhead of adding many more people to the program.

    – People who get health insurance through their employer (and note that these folks are mostly happy with their insurance), would be told that employers would be likely to drop their health benefits if the bill passed.

    – Everyone would be told horror stories about how we can’t even afford Medicare for seniors, and to expect huge tax increases and/or huge deficits if we expanded Medicare.

    After all of that has been repeated enough, via the usual noise machine, Medicare for all would be less than wildly popular. Perhaps, like Obamacare, it could still pass, but that’s far from a sure thing, especially since some interest groups (e.g. insurance companies) would not get the same benefits under this new bill and would probably push very hard to defeat it.

    Like or Dislike: Thumb up 0 Thumb down 0

  17. superdestroyer says:

    Medicare for all is nothing more than back-door nationalization. CMS determinies what treatments, procedures, and specialities exist and which do not.

    Do you really want every doctor to have to play the billing game like they do now. The first thing to do would be medical research and emergency care since the reimbursements would never cover costs.

    Like or Dislike: Thumb up 0 Thumb down 1

  18. Just 'nutha ig'rant cracker says:

    @al-Ameda: Of course European single payer plans are disasters. Do the math:

    1. All European single payer plans are exactly like British National Health.

    2. British National Health was recognized in the 60s and 70s to not be a very good plan.

    3. Nothing ever changes in either Britain or the rest of Europe.

    4. Therefore, European single payer plans are all disasters.

    It’s easy when you know the “facts.”

    Like or Dislike: Thumb up 2 Thumb down 1

  19. An Interested Party says:

    I’m sorry, is this statement a fact, or do you “just know” it’s true? Evidence? Links? Anything to back it up with something other than cock-sure self-righteousness and pixie dust?

    You ask far too much of Tsar Nicholas…hell, he doesn’t even get the irony of that…

    Like or Dislike: Thumb up 1 Thumb down 0

  20. matt says:

    @James Joyner: Down voted your post on accident :(

    Like or Dislike: Thumb up 0 Thumb down 0

  21. Davebo says:

    because companies are so hell bent on keeping themselves under 50 total workers and thus outside of the law’s deadly reach.

    Good news Boss! We closed the deal with GE in a 300 million dollar contract. Now we have to ramp up production.

    What? Call GE and cancel! They must think I’m some sort of idiot.

    Like or Dislike: Thumb up 2 Thumb down 0

  22. Anonne says:

    @Tsar Nicholas:

    Medicare has the lowest reimbursement rates of any program. Medicare for all would greatly reduce the supply and would lead to millions of healthcare workers being laid off.

    Medicare for all would cause the government to increase reinbursements without raising taxes and would just lead to a financial disaster faster.

    I’m sorry, but are you familiar with what Medicare’s rates are? There is no incentive for private actors to pay much more than what the government does, especially when Medicare is the major insurer of the people who use the system the most. I work in a medical supply shop and not one of these Medicare Advantage plans pay anything near on par with what Medicare pays, and Medicare pays THEM 115% of the allowable rates to manage the load. So not only do they cut people’s benefits and provide lower coverage, they get paid a 15% administrative fee to do it. Of course, mileage will vary according to the service – it’s going to be different for physicians versus supply shops like ours.

    People supplement their Medicare with secondary payers and supplemental plans, and that often is a good deal for them because the cost-sharing portion is then manageable. In my view, there is still plenty of space for competition in a Medicare-for-all world because Medicare by itself is not a panacea for all health care costs.

    Like or Dislike: Thumb up 4 Thumb down 0

  23. Johnny Casereader says:

    @al-Ameda:

    Sometimes progressives miss the point for the nuance.

    You don’t need nuance here. You need to read the Constitution, including the 10th Amendment {it really exists}, and decide if the regulation of commerce properly includes making people buy stuff…….original intent and plain language don’t avail statists, so they engage in what amounts to rhetorical legerdemain… in other words – horseshit.

    But more basically, and maybe this is too nuanced for you – if they can do this, the question is naturally what else can they do? Soon you find that tree-branching case law has given the federal government, by jurisprudential fiat, powers expressly excluded by the Constitution.

    This may not bother you, but that’s likely because you’re too obtuse to understand that if you give then extraneous powers to force your ideas on everyone, some day, you won’t like the ideas that are being forced.

    And you’re likely too myopic to understand Orwell’s understanding of the “progressive” road to hell: ““So much of left-wing thought is a kind of playing with fire by people who don’t even know that fire is hot.”

    You and your ilk would burn the Constitution to save it. Your legal arguments are meritless, but sound in policy, and the Left has absolutely no respect for the Will or Consent of the People, because they are as arrogant as they are dishonest.

    Like or Dislike: Thumb up 1 Thumb down 5

  24. Eric the OTB Lurker says:

    @Johnny Casereader:

    You and your ilk would burn the Constitution to save it. Your legal arguments are meritless, but sound in policy, and the Left has absolutely no respect for the Will or Consent of the People, because they are as arrogant as they are dishonest.

    Yes, that must be it. Only the Tea Partiers love the Constitution. In fact, they love it so much, they want to change it with constitutional amendments every chance they get to make it “more clearer.”

    Forget about hundreds of years of case law and jurisprudence, why, Johnny Casereader here says everyone has a misunderstanding of what the Constitution means.

    Like or Dislike: Thumb up 3 Thumb down 2

  25. Susan B. says:

    @Johnny Casereader:

    “Progressive” arguments for the mandate are policy arguments… ‘it would be good’ so it must be Constitutional. The far-right does this as well.

    Much of what’s coming from the left on Obamacare is regurgiated policy arguments. They simply do not compute anything like original intent, or the plain language, and it’s fair to say that they adhere to an ‘abridged’ version of the BoR – dutifully neglecting anything that gives the state more power to force their social policy schemes on everyone – the Constitution be damned.

    Basically, arguing with Progessives – on legal grounds – is pointless. They’re argung social policy. They have absolute faith in their moral superiority, and simply don’t care about the notion of Will and Consent and Constitutional governance. For them, it’s a guideline…meaning, it has no meaning except that which they decide to agree with or grant it.

    The law will be struck because it plainly goes beyond what the Commerce Clause was meant to be, and opens a door shut by the 9th and 10th amendments {oh, and Article 1}.

    It’s not hard – those that don’t grasp the Constitutional structure of federal power make it complex because they blend policy arguments with New Deal jurisprudence, ignore the 10th, and ignore the Constitution itself.

    Like or Dislike: Thumb up 1 Thumb down 3

  26. Susan B. says:

    @Eric the OTB Lurker:

    Hundreds of years?

    Wickard was hundreds of years ago?

    Wickard was a decision that comported with “regulation of interstate commerce” – activity that wasn’t commerce or interstate?

    Huhmm.

    I guess that’s how come you, with your enlightened view of “jurisprudence” can be a-okay with “Equal Protection under the law” not precluding race-based preferences.

    The point is a good one – Progressives don’t care about original intent or plain language. What they want to do is “interpret” things to allow for ramming their statist social policy down the country’s throat.

    Social policy arguments are not legal arguments. The commerce clause does not say “the federal government can regulate commerce, and not just commerce per se, but anything that might arguably, all taken together, theoretically affect commerce, and this includes the power to make people buy things as part fo regulation.”

    Go read the 10th Amendment.

    What it really is for you is for every problem, you assume government is the solution. And you are willing to play fast and loose with the Constitution because you can’t stand the idea of not being able to force people to do what you want them to do by government proxy.

    But the point of a Constitution is to protect individuals from, frankly, people like you.

    Like or Dislike: Thumb up 0 Thumb down 3

  27. Eric the OTB Lurker says:

    @Susan B.:

    But the point of a Constitution is to protect individuals from, frankly, people like you.

    Wow. They should just cross out all that other stuff on the Constitution and write that instead.

    Article 1. Section 1: The point of this constitution is to protect Susan B. from, frankly, individuals like Eric the OTB Lurker. Because conservatives demand protection.

    End Constitution.

    Like or Dislike: Thumb up 3 Thumb down 0

  28. gVOR08 says:

    @Buzz Buzz: John Cole phrased that carefully and his statement is true. The Republican argument, which Politifact bought in their abject desire to say both sides do it, is that there will still be something called “Medicare” after Ryan’s plan. There will still be “Medicare” but it will be nothing like what everyone has understood medicare to be.

    If I tow my conservative neighbor’s car out of his driveway, replace it with a Yugo, take all the badging off the Mercedes, and put it on the Yugo; does he still have a Mercedes?

    Like or Dislike: Thumb up 0 Thumb down 0

  29. HarvardLaw92 says:

    Simple, but profound question:

    Congress didn’t propose to force individuals to purchase something. It gave them a choice to purchase insurance or to accept a penalty (which has to be acknowledged as being a tax) in order to partially subsidize the cost of providing that something for them.

    How is that not an exercise of general welfare taxation?

    Like or Dislike: Thumb up 0 Thumb down 0

  30. HarvardLaw92 says:

    @Susan B.:

    The commerce clause does not say “the federal government can regulate commerce, and not just commerce per se, but anything that might arguably, all taken together, theoretically affect commerce, and this includes the power to make people buy things as part fo regulation.”

    Actually, according to the court, the commerce clause pretty much does entail that. I think it might be more accurate for you to say “This is the operative definition tendered by the court, with which I fervently disagree”

    Go read the 10th Amendment.

    I have. Precisely what argument are you making with regard to it? The threadbare assertion that it limits Congress solely to explicitly enumerated powers, and nothing else?

    By all means, expand on your comment.

    Like or Dislike: Thumb up 0 Thumb down 0

  31. HarvardLaw92 says:

    @Susan B.:

    It’s not hard – those that don’t grasp the Constitutional structure of federal power make it complex because they blend policy arguments with New Deal jurisprudence, ignore the 10th, and ignore the Constitution itself.

    Oh for God’s sake – are you actually still fighting the anti-Federalism battle? You guys lost that one quite a long time ago. We had a war over it. Perhaps you missed it?

    Like or Dislike: Thumb up 0 Thumb down 0