Patterico's Pontifications

6/27/2012

Your ObamaCare Predictions Here

Filed under: General — Patterico @ 11:11 pm

I’ve already made mine.

5-4. ObamaCare struck down.

In its entirety.

Roberts writes the opinion.

Care to differ? Put down your prediction before 10 a.m. Eastern, tomorrow.

72 Comments

  1. Hey, it’s 11:11!

    Comment by Patterico (feda6b) — 6/27/2012 @ 11:11 pm

  2. I’ll be bolder.

    a split decision

    5-4 for striking down the mandate.

    7-2 for striking down the whole thing, with two of the justices who voted to uphold the mandate agreeing that if the mandate is removed, they should strike down the whole law.

    Comment by Aaron "Worthing" Walker (23789b) — 6/27/2012 @ 11:16 pm

  3. I’ll go out on a limb, and slightly depart from the conventional wisdom:

    7-2 against the individual mandate, with Breyer and Sotomayor joining the five.

    5-4 in favor of nullifying the whole law

    Comment by JVW (f28a18) — 6/27/2012 @ 11:18 pm

  4. Because everyone else thinks it will be 5-4, I will go out on a limb and say 7-2 for striking it down surprising the hell out of everyone.

    Comment by crosspatch (6adcc9) — 6/27/2012 @ 11:19 pm

  5. GMTA, I suppose.

    Comment by crosspatch (6adcc9) — 6/27/2012 @ 11:20 pm

  6. The bill will be struck down in its entirety.

    It will not be a historic case in the long run. There have been 2 cases limiting the commerce clause in the last 70 years. The first two are actually tougher constitutional questions than this one. And they aren’t touch questions at all.

    Liberals will immediately try to minimize the loss and say “but of course the commerce clause doesn’t go that far.” BUT “We still think single payer is constitutional.”

    Comment by bskb (7be5cf) — 6/27/2012 @ 11:21 pm

  7. Conventional wisdom is conventional because it’s often right.

    I won’t get bragging rights, very much, but I will have been right.

    I predict.

    Comment by Patterico (feda6b) — 6/27/2012 @ 11:22 pm

  8. Here’s another prediction: Roberts has carefully laid a trap to catch the person who is leaking the vote tallies to the White House. To no one’s surprise, it will turn out to be one of Elena Kagan’s female law clerks. She will be exposed and summarily dismissed from her position, leaving her to lament on the Rachel Maddow Show that there is no one to pay for her oral contraception. She will then join Sandra Fluke and Rosanne Barr in a nationwide tour of “The Vagina Monologues” sponsored by Jezebel and ESPNw.

    Comment by JVW (f28a18) — 6/27/2012 @ 11:27 pm

  9. Conventional wisdom based on things that have happened before is one thing. “Conventional wisdom” based on the sum of media predictions might be something completely different. These predictions aren’t so much based on experience as they are on the assumption that it is going to break on the ideological fault line running through the court. Did anyone think the court would uphold that part of the Arizona immigration law 8-0 ?

    Comment by crosspatch (6adcc9) — 6/27/2012 @ 11:30 pm

  10. 4-3, 2 recusing, to strike it all.

    Comment by htom (412a17) — 6/27/2012 @ 11:41 pm

  11. I agree with your prediction, Patterico. I just don’t think Obama would be so upset if only the mandate was struck down. That would put him in a position to destroy the insurance industry. Justices are not so foolish as to allow the law to stand without the mandate.

    Comment by Daryl Herbert (1e4392) — 6/27/2012 @ 11:42 pm

  12. 5-4 overturn.

    Me, I’m kind of hoping they add “Oh, and BTW… Wickard v. Filburn? Yeah, that’s gone too.”

    Comment by Russ (13eae2) — 6/27/2012 @ 11:43 pm

  13. “Did anyone think the court would uphold that part of the Arizona immigration law 8-0 ?”

    Sure. It was pretty obvious after the oral argument, actually.

    My predictions are based on carefully listening to the arguments.

    Comment by Patterico (feda6b) — 6/27/2012 @ 11:45 pm

  14. Me, I’m kind of hoping they add “Oh, and BTW… Wickard v. Filburn? Yeah, that’s gone too.”

    They should do that.

    They won’t.

    It will be a very unsatisfyingly narrow decision.

    Comment by Patterico (feda6b) — 6/27/2012 @ 11:45 pm

  15. Da Bears 127, ObamaCare 0, Ditka with 9 forced fumbles, and Jordan a quadruple double. Me…two or tree heart attacks by noon. No big whoop.

    Comment by MostlyRight (4f90a6) — 6/27/2012 @ 11:54 pm

  16. Oh, and someone is going to claim that they’ve all read it all before deciding.

    Comment by htom (412a17) — 6/27/2012 @ 11:59 pm

  17. “My predictions are based on carefully listening to the arguments.”

    Which I didn’t do in this case. My basis for the 7-2 thing is to decide what would be the most likely outcome if it isn’t 5-4, which seems to be well-covered.

    Comment by crosspatch (6adcc9) — 6/28/2012 @ 12:04 am

  18. I expect 7 opinions, with concurrences and dissents in part. The end sum is that the law is struck, 5-4, but the rest of it is a muddled mess.

    Kagan writes an orthodox full dissent.
    Breyer and Ginsberg each write partial dissents, with one of them concurring that the mandate is unconstitutional but both objecting to throwing out the whole thing. Sotomayor joins one.

    Roberts writes the Court’s opinion, joined by Kennedy and Scalia. Alito concurs except for one minor point, and Thomas concurs but would have overruled Wickard and Slaughterhouse as well.

    Obama immediately appoints 5 new justices to the Court, which the Senate immediately confirms via the nuclear option. Everyone sues saying “there’s a law” but the Court rules 8-6 that no, it’s OK. Then they appoint Obama President-for-Life, finding this in the penumbra of the 3rd Amendment.

    I could be wrong about some of this.

    Comment by Kevin M (bf8ad7) — 6/28/2012 @ 12:27 am

  19. I fear it is going to be 5-4 upholding 1/2+ of Obama Care/ACA… Mandates will be gone–But much of the rest will be left behind as the court figures out how to extend the broccoli salad and the parts “for the children”.

    There is no going back (at least not yet).

    Comment by BfC (fd87e7) — 6/28/2012 @ 12:29 am

  20. In all seriousness,the most worrisome thing is Raich, which creates almost enough of a precedent to justify sustaining the law.

    Comment by Kevin M (bf8ad7) — 6/28/2012 @ 12:30 am

  21. Patterico:

    I like absolute certainty; I predict the Court will strike down ObamaCare 7 to 4.

    Dafydd

    Comment by Dafydd the Chin Puller (632d00) — 6/28/2012 @ 12:41 am

  22. I forgot to change my name to something different.

    I have done that myself alot.

    Dafydd

    Comment by Dafydd the Rigid Idea Log (632d00) — 6/28/2012 @ 12:43 am

  23. 5-4 the left wins again. I am praying I am wrong.
    The court is afraid of tort reform.

    Comment by mg (44de53) — 6/28/2012 @ 3:21 am

  24. 5-4 to invalidate the mandate.

    But a 2 judge plurality consisting of CJ Roberts and Kennedy will then find the mandate to be severable, and will Roberts opinion will comb through all 2300 pages of the bill and carve it up — provisions that relied on the mandate will be out, provisions that did not rely on the mandate will survive. The opinion will make clear Congress can act to fix whatever they disagree with.

    Alito, Scalia and Thomas will concur in the judgment, but find that mandate not severable.

    The liberal block will vote in the minority to sustain the entire law.

    Comment by shipwreckedcrew (06750d) — 6/28/2012 @ 3:53 am

  25. 1. The mandate is an unlimited exercise of Federal power and is unconstitutional.

    2. The mandate is practicably not severable. Whole sack of crap splatters pavement.

    3. The coercive expansion of Medicare is practicably an exercise of taxing power not extended to Feds by Commerce clause. Interstate commerce does not pertain.

    4. Federal courts have jurisdiction. Are you kidding, slopeheads?

    Comment by gary gulrud (dd7d4e) — 6/28/2012 @ 3:54 am

  26. Patrick…how ’bout a related prediction:

    If upheld, will the Dow plunge after 10am?
    If struck down, will the Dow skyrocket?

    Comment by RB (e7b1bd) — 6/28/2012 @ 4:14 am

  27. My prediction is that the individual mandate will have a cap buthted in its ass 5-4 and the yahoos on MSLSD will declare victory for 0bama.

    Comment by Colonel Haiku (bb1286) — 6/28/2012 @ 4:34 am

  28. 6-3, 6-3

    Comment by Beto (41967a) — 6/28/2012 @ 4:39 am

  29. Hoping they reject the whole law.

    Grudgingly okay with rejecting just the mandate.

    Seriously afraid they’re going to accept the whole thing.

    Comment by steve (369bc6) — 6/28/2012 @ 4:49 am

  30. I predict that the left will act like kindergarteners regardless of the outcome.

    Comment by JD (ad6f40) — 6/28/2012 @ 5:07 am

  31. If the 5-4 decision is to toss out Obamacare, then the following things will happen:

    1) The decision will be viewed as partisan politics but only as it relates to the five.
    2) Race played a part…sez MSNBC.
    3) “Unprecedented” will be the word of the day on cable TV.
    4) Talking heads will suddenly accuse the court of having too much power.

    Wait, all that has already happened. Never mind.

    By the way, if goes the other way, the right will complain, but eventually decide that this is why we can’t let some folks choose lifetime Supreme Court Justices. The resulting energy will push the general election into a landslide for Romney.

    Comment by ukuleledave (e546ca) — 6/28/2012 @ 5:08 am

  32. #29 Brrrrr. I actually agree with JD on something?

    Comment by steve (369bc6) — 6/28/2012 @ 5:12 am

  33. I would have sent this to JD if I knew how…

    I don’t know why we are spending our time on this when there are more pressing issues, such as:
    http://news.yahoo.com/blogs/ticket/sixty-five-percent-americans-obama-better-suited-handle-171143465.html

    Why 65% of people think Obama is better suited to handle extraterrestrial illegal aliens when he can’t handle terrestrial ones I do not know. Maybe some think that Obama is alien enough to better relate.

    While I’m at it, depending on the ruling, my lower-than-novice Constitutional law question will be how the ruling affects the tradition of Wickard. It would seem that if the feds can tell a farmer what (otherwise legal crop) he can and can’t plant for his own use on his own land, the feds can tell us just about anything. I don’t know what the possibility is for this to be walked back. I guess that is what we are waiting to see today in a larger sense (as if health care wasn’t large enough).

    Comment by MD in Philly (3d3f72) — 6/28/2012 @ 5:16 am

  34. 7-2 against the individual mandate, with Breyer and Sotomayor joining the five.
    Comment by JVW — 6/27/2012 @ 11:18 pm

    – If Breyer ‘joins the five’, then A) I will eat my hat; and B) someone had better check Breyer for a pulse.

    5-4 to overturn the mandate

    Comment by Icy (58301d) — 6/28/2012 @ 5:17 am

  35. Oh, yeah. I hate to make any predictions since Obama won the presidency, which defies logic, IMO.

    Comment by MD in Philly (3d3f72) — 6/28/2012 @ 5:18 am

  36. Why 65% of people think Obama is better suited to handle extraterrestrial illegal aliens when he can’t handle terrestrial ones I do not know

    family ties? professional courtesy?

    Comment by steve (369bc6) — 6/28/2012 @ 5:23 am

  37. since Obama won the presidency, which defies logic

    I disagree. Remember Barnum’s words. There always has been, and always will be, a large number of Americans who are seduced by shiny new toys, the fads of the day. Millions of people bought into the fallacy of always-rising house prices, why wouldn’t you expect that people could/would buy into the fallacy of Obama?

    Comment by steve (369bc6) — 6/28/2012 @ 5:29 am

  38. Okay, my prediction (which I don’t know is possible)

    5-4 to overturn the individual mandate

    7-2 to overturn the whole law (the games with the severability clause will, IMHO, come back to bite the congress, the justices will just say “hey, you didn’t include it so I just did what you said” (while muttering *I* ain’t reading your multi-thousand page monster – *you* do it.)

    That and a token *might* get you on the subway (actually, it wouldn’t because the NYC subway doesn’t take tokens anymore – showing my age)

    -John

    Comment by John (5d6fe8) — 6/28/2012 @ 5:45 am

  39. 6-3 to overturn the mandate (Wise Latina)
    5-4 rest is unseverable

    Comment by aunursa (7014a8) — 6/28/2012 @ 6:26 am

  40. Colonel Mustard. In the Oval Office. With an Anvil.

    Comment by David, professional internet troll (df4742) — 6/28/2012 @ 6:41 am

  41. 5-4 to overturn the mandate; not severable; whole ball of wax sent back to Congress; left gets angry and energized; Obama wins by a landslide; “Medicare of all” becomes the political catch phrase of 2013; socialized medicine becomes a reality in 2015

    Not sure about the last three…

    Comment by Kman (5576bf) — 6/28/2012 @ 6:41 am

  42. I have a bad feeling they punt the decision stating they can’t rule on a “tax” until after it goes into effect.

    Comment by Sean (ff2f3b) — 6/28/2012 @ 6:41 am

  43. Dow is down 100 pts. pre-decision…

    Comment by RB (678718) — 6/28/2012 @ 6:42 am

  44. Roberts writes the court’s opinion, yes. The individual mandate struck down, at the end of a long, reasoned opinion. The forced Medicaid expansion, if not struck down (in its own right) still results in an opinion saying there are limits to how much the federal government can tie to aid.

    Many concurrences and dissents. No opinion gets 5 votes, although there may be partial concurrences with sections of opinions.

    The whole law is not struck down, although Scalia, joined by Thomas and Alito and maybe a liberal justice, proposes doing that. More likely maybe only 2 votes for having the whole law fail. Alito or Thomas will have some disagreement with Scalia. A liberal justice, or two, may accept the individual mandate but say if it goes the whole law should go or propose a different division.

    Roberts strikes down the bare minimum beyond the individual mandate. He only strikes
    Kennedy does not exactly agree with Roberts. To determine what happens you much count up who concurs with what.

    A liberal justice or two (Sotomayor and/or Kagan) strikes down the Medicaid expansion but not the individual mandate. Has a different division than Roberts of what goes with it.

    Comment by Sammy Finkelman (976d9e) — 6/28/2012 @ 6:44 am

  45. Today is yesterday’s tomorrow. Court rules 6/3 against mandate alone, 5/4 to junk whole mess. If I am wrong, it won’t be the first time.

    Comment by BarSinister (664312) — 6/28/2012 @ 6:45 am

  46. Roberts definitely leaves anything that was an extension of an expiring law and maybe only Scalia and one other wants to strike those things down. He voids the Medicaid expansion but only on its own merits not because it must fall with the individual mandate. Less than either major proposed falls with the law, although no exclusion for pre-existing conditions and community rating falls, because without a subsidy of some kind, you can have one but not both or you abolish the insurance business.

    Comment by Sammy Finkelman (976d9e) — 6/28/2012 @ 6:48 am

  47. * less than either major counsel. there was a position argued that only what is held unconstitutional should fall. Roberts will not go for that. Nor will he go for Scalia’s proposal to strike down the entire law since it has no severability clause and they should not have to attempt a whip count. One justice or more may propose a second decision to decide what actually falls with the unconstitutional parts – a special master maybe – or at least a delay in the date it falls, to at least the end of the year, or when major provisions kick in.

    Roberts will not even agree with the position of that you eliminate all of a section of the law He will only eliminate if otherwise the law is left in a position of absurdity.

    Comment by Sammy Finkelman (976d9e) — 6/28/2012 @ 6:53 am

  48. Comment by JVW — 6/27/2012 @ 11:18 pm

    7-2 against the individual mandate, with Breyer and Sotomayor joining the five.

    5-4 in favor of nullifying the whole law

    More likely it could be 5 for striking down the mandate. 5 for striking down the Medicaid expansion. But not the same five.

    Comment by Sammy Finkelman (976d9e) — 6/28/2012 @ 6:55 am

  49. Roberts and Alito join GBSK in upholding the monstrosity by rationalizing the ACA as not being fundamentally different than mandatory participation Medicare and Social Security.

    Congress is the only place to undo this.

    Comment by crazy (d60cb0) — 6/28/2012 @ 6:56 am

  50. Roberts, maybe alone, says the Medicaid expansion only falls because it is unconstitutional in its own right.

    Comment by Sammy Finkelman (976d9e) — 6/28/2012 @ 6:57 am

  51. ObamaCare is opposed by the American people and it’s clearly repugnant to the letter of the Constitution as well as to the fundamental values which inform it.

    However I expect the SC will uphold ObamaCare as a result of sinister Chicago influences.

    Comment by ropelight (1095e2) — 6/28/2012 @ 7:02 am

  52. If the whole thing isn’t struck down, I predict a lot of 4-4 votes with Kagen recusing herself.

    Comment by PCD (1d8b6d) — 6/28/2012 @ 7:02 am

  53. Dow holding at -104…

    Comment by RB (678718) — 6/28/2012 @ 7:03 am

  54. Come to the newest ObamaCare ruling thread! There is a link to a liveblog which is the fastest way to get the ruling.

    Comment by Patterico (feda6b) — 6/28/2012 @ 7:04 am

  55. http://scotusblog.wpengine.com/

    Comment by RB (678718) — 6/28/2012 @ 7:07 am

  56. The individual mandate survives as a tax.

    uh oh

    Comment by Dustin (330eed) — 6/28/2012 @ 7:09 am

  57. whole thing upheld. ugh.

    Comment by John (5d6fe8) — 6/28/2012 @ 7:14 am

  58. Dow down 119.

    Comment by RB (678718) — 6/28/2012 @ 7:15 am

  59. 23. This sounds good but I have a few caveats:

    Comment by shipwreckedcrew — 6/28/2012 @ 3:53 am

    5-4 to invalidate the mandate.

    Some concurrences may not agree with his analysis. Also he may say, deference to Congress means law should be evaluated as a tax with a rebate rather than just mandate with a penalty, but the penalty is an unconstitutional tax. He may not get 4 concurrences with that as some may say this has not been argued.

    Also 5-4 or more to invalidate (on its own) the Medicaid expansion. Roberts will say if Medicaid expansion were not unconstitutional, it would not fall with the mandate. Liberal justice or two (Kagan? Breyer? Sotomayor?) may say mandate falls with the Medicaid expansion, but is not itself unconstitutional. (No Medicaid expansion means mandate is impossible for some people to meet)

    But a 2 judge plurality consisting of CJ Roberts and Kennedy will then find the mandate to be severable, and will Roberts opinion will comb through all 2300 pages of the bill and carve it up — provisions that relied on the mandate will be out, provisions that did not rely on the mandate will survive.

    He may rather just lists what goes rather than what stays.

    The opinion will make clear Congress can act to fix whatever they disagree with.

    Even Scalis would agree to that.

    Alito, Scalia and Thomas will concur in the judgment, but find that mandate not severable.

    There is the point what about extensions of pre-existing law folded into the bill.

    The liberal block will vote in the minority to sustain the entire law.

    No, because one or more will have trouble with the Medicaid expansion, or at least the idea of an unlimited Medicaid expansion.

    If a state can decline, then let’s say one does – isn’t the mandate then unpayable for some people?

    Comment by Sammy Finkelman (976d9e) — 6/28/2012 @ 7:15 am

  60. I’m going with 5-4 to uphold the mandate, but as a tax

    Comment by steve (369bc6) — 6/28/2012 @ 7:16 am

  61. The Medicaid expansion was struck down, but not the individual mandate!!!

    Justice Roberts must have held that the penalty was not an unconstitutional tax after all.

    What, are assessments on individuals,of a fixed amount, constitutional?

    Nothing much falls with the Medicaid expansion.

    the law, however is left in a complete mess. Obama has now saddled the poor with an unpayable tax.

    Comment by Sammy Finkelman (976d9e) — 6/28/2012 @ 7:21 am

  62. Hey, how about Congress assessing every U.S. citizen or permanent resident a $5,000 annual tax?

    They haven’t done that only because the penalty is less than the cost of insurance.

    Comment by Sammy Finkelman (976d9e) — 6/28/2012 @ 7:23 am

  63. All the news reporters do not understand how much striking down the Medicaid expansion undermines the entire law.

    Fr sure, if left alone, lots of people will not have health insurance, and will owe a penalty, which however will not be collected except for the fact the IRS will seize their tax refunds,

    Comment by Sammy Finkelman (976d9e) — 6/28/2012 @ 7:28 am

  64. Comment by crazy — 6/28/2012 @ 6:56 am

    Roberts and Alito join GBSK in upholding the monstrosity by rationalizing the ACA as not being fundamentally different than mandatory participation Medicare and Social Security.

    The problem with that is that Social Security tax and Medicare tax is a tax on income. The mandate penalty is a tax on U.S. citizenship or legal residency.

    Congress is the only place to undo this.

    Comment by Sammy Finkelman (976d9e) — 6/28/2012 @ 7:36 am

  65. Crazy >> Congress is the only place to undo this.

    Congress never would have passed this (this way) without the Medicaid expansion, which by the way, was thrown into it almost an afterthought, but still it’s there.

    If framed as a tax it never would have passed.

    Now that it is framed as a tax, it is very legitimate not to enroll and pay the penalty.

    Comment by Sammy Finkelman (976d9e) — 6/28/2012 @ 7:39 am

  66. As i read it, the medicaid issue only means that the government can’t withhold ALL medicaid payments, they can only withhold additional medicaid payments that the state would get if it went with the expansion.

    As for the individual mandate, I guess now the congress can force individuals to do anything, as long as the penalty is a “tax” – so say a $1M an hour tax for non-compliance? Sigh.

    Look for the issue with religious organizations to explode back to the fore, it was on the back burner because many thought that the law might be struck down.

    -John

    Comment by John (5d6fe8) — 6/28/2012 @ 7:39 am

  67. “You lie!”

    Comment by AZ Bob (1c9631) — 6/28/2012 @ 7:47 am

  68. ObamaCare is a lot of things but it isn’t a tax, it never was, and it never will be.

    Calling it a tax in order to improperly force it on an unwilling nation is not only repugnant to the Constitutional rights of Americans it is a betrayal of reason itself.

    Chief Justice John Bader-Roberts has betrayed the nation and the Constitution he is charged with protecting and defending.

    Comment by ropelight (1095e2) — 6/28/2012 @ 8:00 am

  69. maybe the extraterrestrial thing is in play after all, maybe it would help

    Scotty, beam sopme intelligent life down to the planet

    Comment by MD in Philly (3d3f72) — 6/28/2012 @ 9:22 am

  70. http://m.washingtonexaminer.com/dnc-executive-director-spikes-the-football-its-constitutional-bitches/article/2500854?utm_source=Washington%20Examiner%20Opinion%20Digest%20-%2006/28/2012&utm_medium=email&utm_campaign=Washington%20Examiner:%20Opinion%20Digest

    I was right

    Comment by JD (ad6f40) — 6/28/2012 @ 10:11 am

  71. Yes, JD, you were right.

    I think my comment at #34 was at least in the correct direction- predictions are nigh unto meaningless in the age of Obama. Obamacare ruled Constitutional not because the court agreed the Commerce clause can be used for anything with Kennedy being the swing vote, but because Roberts decided to call it a tax after all (in spite of Obama saying it isn’t) and the feds can tax anything, and nothing as well.

    Comment by MD in Philly (3d3f72) — 6/28/2012 @ 11:35 am

  72. This excellent website truly has all of
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    Comment by pictures of drugs (84a06a) — 7/2/2012 @ 1:07 pm

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