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June 27, 2012

More ObamaCare Speculations, And a Victory Lap from Volokh Conspiracy's Ilya Somin

Some ruminations from Carrie Severino at NRO.

She reminds me of something I'd completely forgotten. While we're all taking about the Mandate, the court also entertained the question of whether or not the federal government could force states to expand Medicaid, by taking all Medicaid funding away if the states did not comply.

Here is the crux of the question: The federal government does a lot of things the Constitution doesn't grant it power to do. It does so through the fiction of "state-federal partnership." The federal government can't do it, but the state can, so a "state-federal partnership" is created, permitting federal governments to act in ways they could not otherwise act.

Now, if this is not a partnership at all -- if the government can simply dictate to the states what they shall or shall not due, with the threat of withholding large amounts of federal money (collected from state citizens -- doesn't this expose the "partnership" for what it is, an end-run, a dodge, a pretext to hide an unconstitutional exertion of federal power?

Shouldn't that fail, too?

Severino considers this a "thorny" question, and suggests that the Court will avoid it by simply saying the entire law must fall due to the mandate.

Question dodged. And the courts do enjoy dodging questions.

More tea leaves at Hot Air.

I think we all are pretty sure that Roberts will write an opinion, and Ginsberg will write the other opinion. What we don't know is who's writing for the minority, and who's writing the actual holding.

I argued with this with Drew. If Kennedy has flipped to the liberals, he might permit Ginsberg to write the majority holding. Perhaps he is a Faint-Heart who thinks liberals will be mad at him, and so will vote with them, but doesn't really believe in that vote all that much, and so will let Ginsberg write it.

But the Hot Air post reminds that Kennedy is fairly conservative as far as federalism, so: Even if he cast his vote with the liberals, he'd likely want to write the majority opinion to limit it. Even if he sided with the liberals, he wouldn't want to sign over carte-blanche for more of this nonsense. He'd want to say "health care is unique, and don't go trying anything else along these lines."

Then again, I suppose that Ginsberg could agree with such an opinion, if it means she gets to deliver President Precious his Big Win.

But I would say -- my guess -- is that it's probably 5-4 to overturn, with Roberts in the majority, Ginsberg in the minority.

I can't help but keep thinking that when Ginsberg talked about this case a few weeks ago, she said the issue was whether the mandate could be severed. She did not say the issue was whether or not the federal government could impose mandates as it liked, with no Constitutional authority save the much-abused Commerce Clause.

I can't help thinking that the mandate itself is actually being overturned by not five votes but by more than five votes, and that the real controversy will be about severability. I still remember Breyer becoming flustered when he realized that there really was no limiting principle, if the government's lawyers' arguments were accepted. I remember him suddenly realizing -- sort of embarrassed -- that yeah, the government could force you to eat broccoli, if its theory -- health care is unique; the commerce clause gives the government power to regulate your health, etc. -- carries the day.

Is it possible we'll see 7-2 against the mandate, and then 5-4 striking the whole law down?

Was Ginsberg deliberately misleading us? Why would she do that? If she says the heart of the question is severability, then the heart of the question is not whether the mandate is constitutional. If the question is severability, the constitutionality of the mandate has already been answered, in the negative.

Meanwhile, at the Volokh Conspiracy, Ilya Somin is taking a victory lap, and throwing praise at the lawyers who advanced the suit from "crazy fringe argument" to "likely law of the land." He's not making predictions -- well, he says it's a 50/50 proposition, if you can call that a prediction -- but is noting all the work that went into making this very nearly Constitutional law going forward.

Of course, we'll see tomorrow.

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posted by Ace at 05:30 PM

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