Predicting how the Supreme Court will rule on the Patient Protection and Affordable Health Care Act ("PPCA") has been a parlor game, not because the law's constitutionality should even have been a close call, but because it is unclear how this highly political court would calculate the impact of their decision.
The Court's decision (Arizona et al. v. United States) on the Arizona "papers-please" immigration law provides some clues to how they, especially Chief Justice Roberts, may be doing those political calculations.
It appears as if the Chief Justice would like to avoid a 5-4 decision on a law that affects peoples' daily lives. Although Citizens United represents the most flagrantly radical and impactful decision, its effects on peoples' lives is indirect.
The PPCA directly impacts everyone, and profoundly for some people. Hence, if the Chief Justice believes he needs more than a 5-4 majority to reduce the animosity toward the Court regardless of what the decision is, he may consider his options.
If Justice Kennedy votes to overturn the mandate, there would seem to be no opportunity to forge a 6-3 majority. The 4 liberals are highly unlikely to abandon reason, judgment and precedent to participate in the charade that the law is unconstitutional.
If, on the other hand, Justice Kennedy votes to uphold the mandate, the Chief Justice could join that majority and make it 6-3. It is likely, however, that he would prefer for political reasons not to do that.
In that situation the Chief Justice may have two options. He could offer Justice Kennedy 2 deals on the grounds that he, Kennedy, would also prefer not to be on one side or the other of a 5-4 decision.
One option would be for Justice Kennedy to concur with the result of upholding the mandate, but as an exercise of the taxing power, not commerce. The argument would be that the "fine" is actually a tax, and that providing consumers the alternative of purchasing health insurance to avoid that "tax" is a legitimate exercise of Congress's taxing power.
That alternative would provide the Republicans a partial victory -- they could claim that the Supreme Court found that the president had actually imposed a tax. (Shiver-me-timbers!) He could also make it a condition that the liberal Justices join the opinion on that rationale so that all 6 Justices, including liberals, agree that this is really a tax. And, for those who believe that upholding the mandate is a net positive benefit for Republican electoral interests anyhow, the Chief Justice could be credited by the rightwing of providing them a double-win: a tax and an intact mandate to campaign against.
A second option is for the Chief Justice to get Justice Kennedy to agree that the mandate is not ripe for decision because it has not yet been administered. That is similar to their decision on the one provision of the "papers-please" law the Court did not invalidate, but rather left open for future consideration once the Arizona police begin implementing that law, so the Court would have a concrete set of circumstances to adjudicate.
That alternative would enable both Justices to avoid taking a position on the mandate per se, leaving it to be rendered moot by a Republican election victory or, failing that, to put the decision off by 2-3 years until the law is implemented, another law suit if filed, and the new case percolates up through the system.
I would place my bets on one form or another of the second option. Deciding simply that the issue is not ripe for adjudication leaves open whether the Court will consider it a "tax" when it is finally administered in 2014, and thus retains all their flexibility. Deciding to label the fine a "tax" enables the Court to avoid a decision based upon the Tax Anti-Injunction Act, a statute prohibiting adjudication of tax matters until the tax is actually paid. Thus, if they decide the fine is indeed a "tax," the statute may compel delay.
Hiding behind the statute provides the Court with a political shield from both sides. The "tax" argument could be viewed as providing the most favorable perspective the Court could grant it, and the statute would provide the rationale for not deciding its fate. It would also provide Republicans the same double-win as above: the Court would have labeled it a "tax," and Republicans' wish to repeal it would drive their voters to the polls.
Either delay option (ripeness or the Tax Anti-Injunction Act) would be a "full-employment act" for political pundits who will be able to fill the airwaves with nonsense for several years and, not wanting to bite the hands that feed them, be only weakly critical of the Court, if that.
The Court, for its part, may re-gain some of its credibility to do serious jurisprudence, lost by its decisions in Citizens United (a ruling neither of the plaintiffs asked them to consider), and the Arizona Clean Elections Law in which the Court held, remarkably, that providing those who limited their campaign funding, but who could get dollar-for-dollar matching funds if their opponent did not, was an unconstitutional limitation on free speech. By not invalidating the mandate constitutionally, the right-wing's other ambitions to privatize Medicare and Social Security through mandates would remain constitutionally viable.
Moreover, the Court has already handed opponents of the law all the tools they need, i.e., Citizens United, to repeal the law through elections while leaving themselves the option of overturning it in 2014 if the right-wing is unable to purchase the Congress and president it wants.
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