Will “Obamacare” Pass?

March 29, 2012; Source: Los Angeles Times

With the courtroom arguments about President Obama’s signature health care law now over, an array of analysts are speculating as to what the Supreme Court justices may or may not rule a few months from now—a ruling that will come with massive implications for all involved in U.S. health care and health insurance, nonprofits included. In fact, many nonprofits are already applying for grants tied to the Affordable Care Act (ACA), the law in question. As NPQ recently noted, the most controversial “Obamacare” (a term that the White House is now embracing) provision, the “individual mandate” to buy health insurance or pay a fine, may come down to whether the justices view health care as a consumer product like any other, or as a special case.

The two sides of the debate before the Supreme Court were voiced by Paul Clement (the former solicitor general who argued against the law’s constitutionality) and current Solicitor Gen. Donald Verrilli Jr., along with his deputy, Edwin Kneedler, who made the case for the law’s legality. So which side made the more convincing argument, and how will the justices vote? The Los Angeles Times assembled a nice quartet of legal scholars to address these questions.

First up, UCLA’s Adam Winkler appears more impressed with Clement’s arguments, stating that Verrilli “failed to remind the court repeatedly of the deference the Court owes Congress” when it comes to making laws. Winkler concludes that he “wouldn’t be surprised” if the Supreme Court invalidated the individual mandate, but he doesn’t think they would trash the law’s other provisions.

Next, Stanford’s Henry T. Greely agrees that Clement was the more convincing orator, but his read is that four justices are in favor of upholding that law as written, while three appear against it. The swing votes, as Greely sees it, are Justice Anthony Kennedy and Chief Justice John Roberts. Greely hints that he believes Kennedy may tip the scales in favor of “Obamacare” as is: “I would be surprised if Justice Kennedy wanted one of his memorable acts to be” overturning this law, he writes.

The Cato Institute’s Ilya Shapiro agrees that Kennedy will likely be the swing vote, but thinks the justice will swing in the opposite direction from what Greely suggests. Shapiro agrees that Clement’s oratory was more impressive than the government’s presentation, but downplays how important this may be, suggesting that the justices may have been “predisposed to one side or the other” and perhaps “those predispositions were just confirmed.”

Lastly, Georgetown’s Neal Katyal (who, it should be noted, is a former member of the Obama administration) suggests that “it is a very hard thing to ask the federal court to strike down any act of Congress,” noting that “a lot of the concerns are policy concerns against the act and not constitutional concerns.”

Of these four, which analysis do you think—or hope—is most accurate? Should nonprofits applying for grants tied to the Affordable Care Act be worried that the framework for the grants will be leveled this summer? –Mike Keefe-Feldman