No, this is not a post about how the government is going to force you to buy cookies, even if that would be better than broccoli. It’s about how I came to realize that the minimum coverage provision is doomed: because one of the first things I learned as a litigator was that judges like to give a cookie to each side.
Until last week, I thought the individual mandate stood a chance of being upheld. Specifically, I thought that Justice Scalia might have enough intellectual honesty to stick to the logic of his Raich concurrence and vote to uphold the law.
But last week, the liberal blogosphere started lighting up with dire warnings about the ACA’s expansion of Medicaid, which is on the chopping block tomorrow. “You think the argument against the mandate is radical,” they intoned, “but look at this threat to the spending power.” This Supreme Court is so radical, the argument runs, that it is poised to declare the modern administrative state unconstitutional, in the absence of any split in the lower courts or even any plausible argument based on precedent.
That’s when I realized that Medicaid is the cookie for the left, and the only reason for the cert. grant on that issue was to make the Court look moderate when it strikes down the rest of the ACA. Of course, it only takes four to grant cert. But the Cookie Principle is also useful when four are trying to win over a fifth Liberals ought to stop raising the hue and cry that will make the Court seem restrained when it “only” strikes down minimum coverage.