Obamacare at the Supreme Court
After listening to the audio, my sense is that there are only two likely rulings — either (1) the individual mandate is struck down, with or without severability; or (2) the Court narrowly decides “health insurance is very different and very weird,” such that there can be an individual health insurance mandate, but there is no congressional power to command individual participation in other markets.
Even weirder things have happened. After all, we do have a baseball exception to antitrust, and you won’t find that in the text of the Constitution, either.
In brief, the mandate is not a tax; it is a command. Commands of the form “all people must participate in commerce with a private company” are unprecedented in American law. In principle, the power to command in this way is an unlimited power. It’s unlimited because the founders never even imagined it to exist, and hence didn’t bother writing limits. And yet the lack of limits makes it much more dangerous.
If mandates of this type become popular in future legislation, the courts’ workload will inevitably increase, and much adjudication will have to be done in wholly new areas, with no guidance from common law, the U.S. Constitution, or much of anything else. Courts hate taking steps like these, which mean more hassle for judges and less trust in the judicial system. If I had to bet, I’d bet against the individual mandate, and “less work for future judges” would be the scale-tipper.