Now that the individual mandate case has been decided, it’s worth taking a look at what I got right and wrong in making predictions about the case in advance. I think the record is a mixed bag.
On the plus side, I was right to insist from early on that this was a close case that the plaintiffs had a real chance to win, and in my more recent post-oral argument prediction that the outcome was a 50-50 proposition. A 5-4 decision where the decisive swing voter endorses most of the key arguments of the losing side is about as close to a 50-50 outcome as you can get. I was also right to predict that the conservative justices, including Justice Kennedy, would focus on the question of whether or not the government’s arguments for the mandate would give Congress a blank check to enact other mandates. All five of them, including Chief Justice Roberts, worried about this, and four voted to strike down the mandate in large part for that reason.
On the other hand, I was wrong to think that the federal government was unlikely to prevail on the grounds that the mandate is a tax, and wrong to believe that Kennedy was a more likely vote to uphold the mandate than Roberts. I reached the latter conclusion despite noting that Kennedy had expressed great concern about the need to limit federal power in recent opinions. I gave Kennedy too little credit for having genuine concern about federalism and Roberts too much.
On the tax question, I was lulled into a false sense of security by the overwhelming rejection of that argument by lower court judges, and especially by the justices’ skepticism about it at the Supreme Court oral argument. I always thought this was by far the weakest of the federal government’s three major arguments for the statute. If the federal government was going to win the case, I thought it would be on their Commerce or Necessary and Proper Clause arguments, which is how they achieved all of their lower court victories.
Why did I turn out to be so badly wrong on that issue? We can’t really tell unless and until we know more about Roberts’ motives for apparently switching his vote after initially wanting to strike down the mandate. But my tentative guess is that I was wrong to ignore the possibility that Roberts would see the tax issue as a good way to avoid striking down a major federal law strongly supported by the president and his party, while simultaneously affirming the need to limit Congress’ Commerce Clause, Necessary and Proper, and conditional spending authority. We may never know for sure.