Hints re what Supremes will do?....
Supreme Court Kremlinology--the art of reading tea leaves to divine what a secretive institution's course may be, the term coined during the Cold War to denote Western efforts to divine signals from the Soviet leadership--is famously hazardous.
That said, let's try to read two recent signs that may augur how the Court will decide ObamaCare (the Affordable Care Act of 2010, or "ACA"). Referring Friday to the raft of rulings to be released this week and next, as the Court closes its 2011-2012 term, Ginsburg said, as reported by Politico:
The 21 remaining decisions, she said, were “many of the most controversial cases” that the court reviewed this term. “It is likely that the sharp disagreement rate will go up next week and the week after.”
Mayor Michael Bloomberg's proposed ban on large-size sugar-rich beverage sales, endorsed by some members of the NYC Board of Health Thursday, may play a role, too. Justice Scalia's broccoli hypothetical during April's oral argument, about how if the ACA were upheld, the government could, by the same health rationale, order everyone to eat broccoli, is no longer purely theoretical.
As noted by one lefty blogger who called Scalia's example "naiv[e] and child[ish]" Scalia's formulation was: "Everybody has to buy food sooner or later, so you define the market as food. Therefore, everybody is in the market. Therefore, you can make people buy broccoli."
Mayor Mike's nannyism was widely reported, and as the final ruling is likely still circulating, could provide added impetus for Justice Kennedy to join the four conservative justices in striking down the individual mandate that lies at the heart of the ACA. Kennedy's sharp questioning of the solicitor-general last April signaled that as he has in several cases before, Kennedy may again narrow the reach of federal power to regulate interstate commerce.
Which then raises the issue of severability--the practice of striking down only that part of a statute thought to violate the Constitution, while upholding the rest as constitutional. And it is here that the major conflict may arise between those who would uphold the ACA and those who would strike it down. The House version of the ACA contained a severability provision, but the Senate version did not; the provision thus had to be reconciled during the House-Senate conference on the different versions of the bill that were passed.
As the provision had to be specifically addressed at the conference, it is thus inconceivable that the omission of a severability clause was accidental, produced in the rush of adding several hundred pages to the final bill in the closing days. The conferees decided to leave it out. Why would they do this?
The logical answer is that the conferees wanted to try to confront the Court with a choice between upholding all or nothing. Those who leaned towards striking only the individual mandate and necessarily related clauses such as the ambit of insurance coverage would, in this reasoning, be less likely to do so if the whole law would be invalidated. As health care maven David Catron writes, even the Justice Dept. has stated if the mandate falls, so must two major related provisions: guaranteed issue and community rating. Catron explains why this is so:
While it is possible that the Court will strike down the mandate and leave the rest of Obamacare standing, it's absurd to suggest that the law could still function effectively. Such a ruling would result in a health insurance "death spiral" in which healthy people stop buying coverage and the insurance companies are left with the most expensive patients. This is what Kneedler was trying to tell the justices about the consequences of striking down mandate but leaving guaranteed issue and community rating in place. As he rather inelegantly phrased it, "[P]eople would wait to get insurance, and therefore -- and cause all the adverse selection problems that arise … Rates will go up, and people will be less -- fewer people covered in the individual market."
Scalia flagged severability (scroll down to his 28-sec. clip) at oral argument and broached the prospect of wholesale invalidation as the less radical solution, asking if it were "totally unrealistic" to expect the Court to sift through the massive ACA and decide what goes and what stays. Put simply, there is no way the Court will take upon itself such a burden.
Logically, then, either the Court will strike down only the individual mandate or the entire law. With a logjam in Congress and a delusionally grandiloquent president making rewriting the ACA impossible before January 20, 2013, striking down only the mandate could throw the entire health care market into chaos. Striking down the entire law would provide clarity by comparison--read George Will's urging the justices to become more activist in reining in governmental excess. But the Court is known to follow its own logic.
Add one final factor: the ACA is unpopular, because it increases consumer uncertainty and business labor costs, thus adversely affecting the economy. And the Supreme Court at times, per Finley Peter Dunne's Mr. Dooley, "follows th'illiction returns."
Bottom Line. Kremlinology was famously fallible--and yet well-nigh irresistible to Kremlin-watchers. Those of us who watch the Supremes are equally in thrall, when big cases come along. And we are equally fallible, too. So fasten your seat belts and hold on for a fortnight.
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