I wanted to second Scott in thanking Gerard for inviting me back to Concurring Opinions to blog about the ACA litigation. (Actually, I should thank Scott as well, who approached me about doing this. Thanks, Scott!)
In the interest of full disclosure, I should say that I am someone who, despite opposing the ACA on policy grounds, remains unconvinced that the case for its unconstitutionality is evident. That said, I also maintain—to the frustration of my constitutional law students—that the case against its unconstitutionality is hardly frivolous. Instead, I think that there are, as there so often are in constitutional law, lines of doctrine that point in different directions. Depending how one frames the important question, one can draw on a line of doctrine that is more helpful, enabling one to distinguish the cases comprising the other, less helpful, line of doctrine.
Part of the difficulty with the Court’s Commerce Clause cases, I think, lies in the Lopez majority’s willingness to strike down the Gun Free School Zones Act without overruling a single precedent. Chief Justice Rehnquist’s domestication of Wickard v. Filburn—his distinguishing Wickard from the GFSZA by noting that the latter regulated local activity in the service of a national regulatory scheme whose efficacy would be undermined were Congress unable to reach that activity—may have inspired Congress to think big in drafting the ACA, in order to be able to claim the individual mandate met that safe harbor. The chickens came home to roost somewhat in Raich, as Justices Scalia and Kennedy peeled off of the Lopez/Morrison majority to make a 6-3 majority in favor of applying the CSA to medical marijuana.
The other shoe to drop, after Raich, I think, was the Court’s decision in Comstock v. United States. I vividly recall reading that decision when it came out in 2010, after the bitter political fight over the ACA, and thinking, “Huh. Well, after that, the decision upholding the individual mandate practically writes itself.” (Though Ilya Somin has made a strong case why Comstock should not bolster the constitutional case for the individual mandate.) It has been interesting to see the Government’s argument evolve to lead with Comstock and the Necessary and Proper Clause at the fore.
So what’s my prediction regarding the Court’s ruling? I’ll go out on a limb and predict that the Court will uphold the individual mandate by a ruling of at least 6-3. I can only count 1, maybe 2 solid votes against (Scalia and Thomas); and four votes for (Ginsburg, Breyer, Sotomayor, and Kagan). The Chief Justice acquiesced in Justice Breyer’s Comstock opinion without filing a concurrence, as Justice Kennedy did in Raich. Justice Alito, too, joined Comstock. Though these things are notoriously tricky, I’ll be interested to see whether the oral argument on the individual mandate causes me to doubt my early prediction. (I should disclose that I am terrible at SCOTUS predictions. I remember standing around a family Thanksgiving in 2000 patiently explaining why the Court would never intervene in the presidential election, and articulating what I thought was the slam dunk political question argument against judicial involvement, assuming the Court did grant cert.)