The Supreme Court will hand down its decision in the Affordable Care Act case in a few days, and there’s lots of apocalyptic rhetoric from both sides about what a decision affirming or reversing might mean for the law and for the Supreme Court. I agree that the decision is likely to be hugely important. But I also think there are some reasons why the mandate decision may end up being less significant than many people think.
First, the challenge to the mandate has had an enormous impact even if the mandate is upheld. The political, rhetorical, and legal attacks on the mandate have caused a significant shift in how the legal culture on both sides of the aisle construes federalism issues. By the end of the Rehnquist Court in 2005, the Rehnquist federalism revolution was mostly dead. When Rehnquist and O’Connor departed and were replaced with Justices seemingly less committed to federalism than they, the prospect for any federalism revival at the Court seemed dim. I remember attending the oral argument in Comstock in January 2010 and being aghast at how uninterested in federalism the conservative Justices were. In just two years, opposing the mandate on constitutional grounds rooted in federalism principles has become the standard Republican position. This change has dramatically revived the right’s interest in limited federal power, and has signaled to the left that federalism concerns must be taken seriously. That reemergence of interest in federalism will continue whether the Court strikes down the ACA or upholds it.
Second, if the oral argument in the mandate case is a good guide, the Court may end up with a test that strongly discourages mandates whether or not this particular mandate is upheld. At oral argument, Justice Kennedy suggested that perhaps mandates should require some sort [...]