Quick ObamaCare Prediction

Just so I’m on the record to see how right or wrong I am.

Entire act, including individual mandate, will be upheld 8-1.

Roberts will write the Majority opinion, which will center on the “necessary and proper” clause. Scalia, joined with Alito, will write a concurring opinion that’s much narrower in scope. Breyer, joined by Ginsburg, will write a concurring opinion that delves more deeply into the interstate commerce clause.

FILED UNDER: Law and the Courts, ,
Alex Knapp
About Alex Knapp
Alex Knapp is Associate Editor at Forbes for science and games. He was a longtime blogger elsewhere before joining the OTB team in June 2005 and contributed some 700 posts through January 2013. Follow him on Twitter @TheAlexKnapp.


  1. Thomas is dissenting?

  2. I am not going to predict which way this goes but it will be far closer than 8-1 in any case I believe

  3. Alex Knapp says:

    @Timothy Watson: Yup, Thomas dissenting.

    @Doug Mataconis: I don’t think so. Roberts and Scalia have too much respect for precedent, and Alito is the Scalia lapdog that Thomas is wrongfully accused of being.

  4. MarkedMan says:

    My prediction: The Republican justices will overturn it. When push comes to shove they back their party, ex Bush vs. Gore and Citizens United. Everything else is just talk.

  5. Hey Norm says:

    5-4 along party lines.
    The Court will state that the per curiam opinion’s applicability is “limited to the present circumstances”.

  6. Hey Norm says:

    Where’s the Edit Button? I don’t think “per curiam” applies in this case. Too quick on the cut & paste.

  7. Brummagem Joe says:

    I tend to go with Alex. There is so much settled law surrounding the commerce clause that goes back to Filburn and beyond that to overturn it would be a revolutionary and blatantly political act with all sorts of consequences. When someone like Laurence Silberman upholds it there’s little doubt about the constitutionality of the ACA. If a narrow majority looks like upholding it then it’s going to be very difficult for Roberts, Alito and even Scalia to withold their assent without looking like political stooges. We’re in Dred Scott territory with this case and I have to believe even the conservative justices are not going to relish coming to a blatantly political ruling.

  8. Hey Norm says:

    @ Joe…

    “…blatantly political act with all sorts of consequences…”

    What consequences?
    In Stevens’ dissent to Bush v. Gore he wrote:

    “…One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law…”

    Do you really think Scalia and Thomas give a hoot about anyone’s confidence in their impartiality? If they did they wouldn’t be accepting gifts from the Koch Brothers, and Ginnie Thomas wouldn’t be getting paid to overturn the PPACA.

  9. Brummagem Joe says:

    @Hey Norm:

    Do you really think Scalia and Thomas give a hoot about anyone’s confidence in their impartiality?

    This is not about public confidence in the justice’s impartiality it’s about their own individidual view of their own legal reputatiions. Thomas hasn’t got any legal reputation to be concerned about. The others have….. even Scalia.

  10. Tsar Nicholas II says:

    8-1?! Wow. I’m not too sure about that, Sparky. Already there’s been one federal appeals panel that’s voted to strike down Obamacare and in that respect the 11th Circuit is not known in legal circles as being a firebrand court made up of zealots. The 6th Circuit ruling was 2-1 and if you read Judge Sutton’s opinion without unicorn glasses you’ll find he came very close to going the opposite direction. Granted, the 4th Circuit opinion was 3-0 but did you review that panel of judges? Two were Obama nominees and the third, Diana Motz, I believe was brain dead even back when Clinton first nominated her.

    That all aside, there is a comedy-tragedy element to observing left-wing academics pining for Obamacare to be upheld. It’s rich with irony.

    The two categories of people who most negatively will be affected by Obamacare are poor inner city blacks and young graduates who are trying to get jobs to help pay off their crushing student loan debts. The former negatively will be affected because the unfunded Medi-Caid mandate of Obamacare will draw away substantial federal-state-local resources on which that demographic heavily relies, e.g., housing assistance, food stamps, WIC programs, etc. The latter negatively will be affected because companies out there in the real economy, already reluctant to hire Gen. Y brats, are going to be extraordinarily reluctant to hire that demographic if faced with the higher costs of providing health coverage which is endemic to Obamacare. If you’re going to have to spend higher marginal dollars on fringe benefits then you’re going to want to spend those dollars on people with maturity and experience, not recent graduates.

    The laws of unintended consequences live deep inside of Obamacare. The left completely is insouciant. As always is the case.

  11. Hey Norm says:

    Sorry, I don’t see the consequences.
    They appointed a President…and went so far as to say that no one should ever take that ruling seriously…and yet still Scalia is considered intellectually honest and a legal scholar…”the intellectual anchor of the Court’s conservative wing…”
    Bush v. Gore and Citizens United show these guys will do whatever the party and it’s corporate owners require of them…and there will be no consequences whatsoever.

  12. I predict they punt and rule that they can’t decide the issue until someone is fined under it due to the anti-injunction act.

  13. Hey Norm says:

    TN2’s comment reminds me of how often Republicans just make $hit up out of whole cloth in order to support their positions.

    “…unfunded Medi-Caid mandate…”

    The fact is that the Federal Government pays a very large share of the new Medicaid costs in all States, and the increased costs to States are smaller than their costs would have been if the PPACA had not been enacted.
    If your argument is based on mis-information and factual errors…well…it’s just not much of an argument.
    Now…given that the facts are counter to TN2’s previously held understanding…will he/she re-evaluate his/her argument?
    Nope. It’s the Dunning-Kruger Effect.

  14. @Hey Norm:

    The fact is that the Federal Government pays a very large share of the new Medicaid costs in all States

    Only for the first 10 years though.

  15. Brummagem Joe says:

    @Hey Norm:

    Already there’s been one federal appeals panel that’s voted to strike down Obamacare

    On the other hand I think three have voted to uphold it and the only bit struck down by the 11th was the mandate.

    and the third, Diana Motz, I believe was brain dead even back when Clinton first nominated her.

    Then you’d think Laurence Silberman brain dead since he arrived at the same opinion.

  16. Brummagem Joe says:

    @Hey Norm:

    This is not like Gore v Bush in its impact on settled law. You keep focussing on Scalia and ignoring the fact he’s only one of nine justices. I guess we’ll have wait and see whether you or Alex are broadly correct.

  17. Ben says:

    To strike this down will be to strike down a LOT of settled commerce clause law. It will have a lot of consequences. Many many other laws and regulations use the current understanding of the commerce clause as their legal basis, and if that basis is taken away, we are going to have tons of federal laws challanged under the same legal arguments.

  18. Brummagem Joe says:


    I’m not a lawyer but two of my kids are. One’s a liberal and ones a conservative but they both agree a rejection would drive a bus through commerce clause related law that would seriously undermine the federal govt’s writ. Interestingly there’s a survey out of former supreme court law clerks evenly balanced and only a third of them think the mandate will be overturned …..money quote from one of the conservative former clerks….

    “The only way to strike down the individual mandate would be to overrule decades of precedent going back to the New Deal,” one of the respondants wrote in response to questions. “That’d be a welcome step, in my view, but it’s one that the Court simply won’t take. Justice Scalia gave stare decisis effect to these precedents in the medical-marijuana case (Gonzales v. Raich), and even Justice Thomas’s concurrence in U.S. v. Lopez indicated reluctance to wipe the Commerce Clause slate completely clean.”

  19. Gustopher says:

    I think the justices on the right will find a way to invalidate the mandate under very narrow grounds (compelling a private transaction is unconstitutional, or something, but if it had been structured as the government handing out vouchers that would have passed muster). 5-4 on that, including Thomas with a separate ruling about the inappropriateness of suggesting vouchers in the primary ruling.

    Then comes the severability. There was very deliberately no severability clause in the law, because without the mandate much of the economics makes no sense. If you’rlode icing everything by attempting to Devine the founding fathers’ intent rather than what they wrote (ahem, Scalia, et al.), then there’s no way to ignore the legislators’ comments on the matter. At that point, it becomes a hunt not for what parts of the act to overturn, but what parts to keep. Expect a flurry of decisions there.

  20. Hey Norm says:

    @ Joe…

    “…This is not like Gore v Bush in its impact on settled law…”

    But overturning the PPACA would be like Bush v. Gore in the pure naked partisanship it would require.
    And while Scalia is one of nine Justices…his influence over the other Republicans is out-sized.

  21. Brummagem Joe says:

    @Hey Norm:

    But overturning the PPACA would be like Bush v. Gore in the pure naked partisanship it would require.

    Now you seem to be changing your position. You said there would be no serious consequences when there assuredly would be. Essentially you’re saying party loyalty with five of the justices will triumph over legal precedent regardless of consequences. I agree this cannot be ruled out but like Alex think it less likely.

  22. Hey Norm says:

    @ Joe…
    No, I don’t think I am. Bush v. Gore was a naked partisan ruling…and there were no consequences…except as Stevens wrote, to the view of the impartiality of the Justices. Overturning the PPACA would be just as nakedly partisan…and there would be no consequences…except to the view of the impartiality of the Justices. And that train already left the station.

  23. Brummagem Joe says:

    @Hey Norm:

    No, I don’t think I am. Bush v. Gore was a naked partisan ruling…and there were no consequences…

    Because as I pointed out it had no impact on settled law whereas overturning the ACA would have a huge impact as that quote from a conservative former SCOTUS law clerk explained.

  24. Dave Schuler says:

    I have no idea whatever what the outcome will be.

  25. A says:

    It’s interesting as a liberal who reads this site to see how the other side thinks, to this argument taking place. I’m saying 7-2, Scalia writes the majority opinion, liberal justices (and maybe Kennedy) write a concurrent one. I just don’t see Alito voting for it.

  26. Hey Norm says:

    @ Joe…
    Understood…I just do not see the consequences. The Republican Justices are activists. That’s their reputation…that’s their legacy. And nothing will come of it.

  27. Curtis says:

    I think it might be close in the minds of individual jurists, and I agree there could be several concurring opinions. But I think 7-2 to uphold is most likely, and that both it and 8-1 to uphold are more likely than the 5-4 to repeal.

  28. al-Ameda says:

    I’m guessing a 5-4 vote to strike AHCA down, with the predictable conservative-liberal split.

  29. al-Ameda says:

    @Gustopher: I believe that this is exactly what is going to happen. A narrow ruling would be a fig leaf, needed to mitigate the perception that the Court acted in a partisan manner.

    It’s not going to matter though, any ruling will be controversial.

  30. Brummagem Joe says:

    @Hey Norm:

    Understood…I just do not see the consequences.

    No consequences? I can only point to that comment from a conservative lawyer and the opinion of both my kids who are fairly big hitters and they they predict a failure to uphold mean years of re-litigation of issues of federal power including many btw that are dear to the hearts of conservatives.

  31. mike says:

    It will be 5-4 ruling against the mandate.No question about it.