Co-blogger Orin Kerr asks an important question. How much effect will the individual mandate decision really have? To some extent, we can’t really know. It depends in part on the Supreme Court’s reasoning in upholding or striking down the mandate, and also on future political developments, including who gets to make the next several appointments to the Court. Still, I think a few tentative thoughts are in order. In some ways, Orin is right that the decision will probably not have as much effect as avid partisans claim. Nonetheless, it could well have an important impact both legally and politically.
I. The Legal Impact.
On the legal side, claims that a decision striking down the mandate would somehow restore Lochner v. New York are wildly overblown. Only slightly less implausible are assertions that it would lead to anything resembling a full-blown return to pre-New Deal federalism doctrine. If the Court strikes down the mandate, it probably will not even reverse the most extreme recent Commerce Clause cases, such as Gonzalez v. Raich, much less major New Deal-era cases such as Wickard v. Filburn. Instead, the Court would most likely distinguish Raich, perhaps on grounds similar to those I outlined here. I would love to see a decision overruling or severely limiting Raich. But the votes simply aren’t there for it so long as Raich majority members Scalia and Kennedy are still on the Court.
The legal impact of a decision upholding the mandate would be more difficult to confine. The federal government has presented a variety of arguments claiming that the health insurance mandate is a special case. If the Court upholds the mandate, we will probably get a majority opinion endorsing one or more of these “health care is special” contentions. The problem [...]