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Handicapping the SCOTUS ACA Decision, Part II

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The arguments as to whether further arguments on the consitutionality of the ACA are needed just wrapped. More of a formality on the establishment of a lack of coverage tax vs. penalty (it’ll be a tax) than anything else, the questioning sets the stage for intense and interesting debates in those hallowed halls over the next couple of days. SCOTUS insiders seem to be offering a rather certain take on how things will turn out.

The arguments as to whether further arguments on the consitutionality of the ACA are needed just wrapped. More of a formality on the establishment of a lack of coverage tax vs. penalty (it’ll be a tax) than anything else, the questioning sets the stage for intense and interesting debates in those hallowed halls over the next couple of days. SCOTUS insiders seem to be offering a rather certain take on how things will turn out. According to a highly unscientific survey of recent former SCOTUS clerks and other attorneys

…thirty-five percent of respondents felt that the individual mandate penalizing those who decline to buy health insurance would be ruled unconstitutional. More than a quarter of respondents (27 percent) expected that the case would be thrown out until the mandate actually comes into effect in 2014, with the justices citing the Anti-Injunction Act as a way to argue that there is no standing for a suit. […] The survey describes the respondents as follows: ‘Of the Supreme Court clerks, 12 clerked for the ‘left’ block of the Court (Justices Breyer, Ginsburg, Kagan, Sotomayor), 21 clerked for the ‘right’ block of the Court (Justices Alito, Roberts, Scalia, Thomas), and 10 clerked for Justice Kennedy.’

Because of the gravity of this particular decision, are the justices more interested in appearing bipartisan — escpecially since the legislative branch has already formulated a “default” position — or will they reach outside of that safety zone and convince swing justice Kennedy to declare the individual madate unconstitutional? According to former governor, presidential candidate, and current physician, Howard Dean, the mandate will go down.

While he said ObamaCare has several good components, Dean predicted that the court will rule the individual mandate unconstitutional. Dean told host Charlie Rose that he thinks Justice Anthony Kennedy’s swing vote will side with the conservative justices when it comes to the individual mandate issue.

I, for one, will predict that the law will be upheld. Provisions already set in motion make an already high-stakes political game much riskier in the political Wild Wild West of an upcoming presidential and congressional election when all Americans can least afford to “upset the apple cart” of the reform law’s trajectory.

 

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