You can be deeply conservative and still believe that the Affordable Care Act is completely consistent with the United States Constitution. – Laurence Tribe
All eyes will be on Washington, D.C., Thursday morning as the Supreme Court is expected to announce its ruling on the Obama administration's Affordable Care Act — more commonly known as Obamacare — in a final decision before the court's session ends.
The Affordable Care Act was signed into law in March 2010 and has been working it way through the court system since then. According to a new ABC News/Washington Post poll, 52 percent of those polled expressed an unfavorable opinion of the health care law, with the general opinion of the law remaining nearly steady from when it was initially signed into law.
On Thursday, the court could rule the whole law constitutional or unconstitutional, or it could strike down parts of the law, such as the individual mandate. The issues being debated before the Supreme Court included the questions of:
Is the individual mandate constitutional?
If the mandate is not unconstitutional, could other parts of the law exist without it?
Does the court have authority to take up the law before it goes into effect in 2014?
It has been widely posited that Chief Justice John Roberts will be the author of the lead opinion in the health care case, as he has written only six majority opinions so far this term instead of the seven or eight most of the other justices have authored. The possibility of a Roberts opinion has been used to argue opposite points in the debate over the constitutionality of the law. Neither he nor Justice Ruth Bader Ginsburg have published any opinions since May 24.
Four outcomes — among many others — have been debated prior to the official ruling, with pundits, lawyers and analysts sharing their theories on what Thursday could bring.
The individual mandate is struck down
A February 2012 Gallup poll showed that 72 percent of Americans believed the individual mandate, which would require Americans to purchase health insurance, was unconstitutional. Yahoo reported that a survey conducted after oral arguments showed that most of the 58 legal experts queried predicted that the mandate would be struck down.
The assumption that Roberts will pen the majority opinion in the case led Sen. Mike Lee, R-Utah, a former clerk to Justice Samuel Alito, to say it is "substantially more likely" that the court will strike down the individual mandate.
"I am strongly of the opinion that Chief Justice Roberts was skeptical, to say the least, as to Congress's authority to enact the individual mandate," Lee told The Washington Examiner. "So yes, if we could be certain as of this moment that Chief Justice Roberts was the author of the majority opinion of the court, I would say that would make it substantially more likely — that would be a strong indication — that it is going to be declared unconstitutional."
Avik Roy of Forbes echoed this point, saying the court will likely strike down the individual mandate and Title I, which contains the law's reordering of the private insurance market, but will let the rest of the law stand.
Joey Fishkin of the University of Texas suggested that the court could call the mandate unconstitutional while leaving the law functionally unchanged by striking any suggestion that citizens "must have" insurance, but leaving a fine for those who do not have insurance.
House Speaker John Boehner said Wednesday that if the court does not strike down the entire law, the House will move to repeal what is left of it.
The entire law is struck down
"I do wish to emphasize that there's also a substantial chance that the court will strike down the entire law, contrary to what almost all news outlets have reported recently." Sean Trende wrote at RealClearPolitics. "The issue turns around the arcane question of severability ... Basically, laws typically include a severability clause specifying that if any portion of the law is struck down as unconstitutional, the remainder should survive. But Congress didn't include a severability clause in the health care law."
The complete rejection of the health care law would be seen as a boon for much of the health care sector, with the exception of hospitals and Medicaid-based health plan providers like Molina Healthcare, Sean Williams wrote at MSNBC. Medical device makers would likely see an immediate boost with a 2.3 percent medical device excise tax off the table, he said.
Businesses would also see a boost if the entire law died, John Steele Gordon wrote at Commentary Magazine.
"The death of Obamacare would lift a vast amount of uncertainty from the marketplace, and uncertainty, even more than bad news, depresses markets," Gordon said. "The requirement that employers with 50 or more employees provide a specified level of health insurance beginning in 2014 or pay a $2,000 fine per employee will greatly increase labor costs, by an average of $1.79 an hour for each employee. That would be the biggest government-mandated labor cost hike in American history."
With that uncertainty removed, he said, the subsequent fall in the unemployment rate would help President Obama. Ed Morrissey, writing at The Week, also suggested that tossing the law could help end the battle between Catholics and the Obama administration over contraception coverage.
Striking down the entire law could also help Romney, Time magazine's Mark Halperin suggested, because it would allow him to say, "The law needs to be replaced. Who do you want to replace it? Me, or the guy who wasted a year and a half of the country's time passing something unconstitutional?"
While the opinions listed above cite presumptive benefits of the law's dismissal, removing the law could have negative consequences as well, supporters caution.
If the law is struck down, "the nation would be stuck with a status quo in which the ranks of the uninsured continue to swell, more workers lose their company health insurance, premiums rise, benefits shrink and more people skip medical treatments because of cost," Jeffrey Young wrote at The Huffington Post. "Meanwhile, the nation's health care bill, which was an estimated $2.7 trillion last year, will continue to devour an ever-larger share of the economy."
The fact that Justice Antonin Scalia read his dissension opinion from the bench during the Arizona immigration case may suggest that Scalia is not in dissent in the health care cases, Ed Whelan wrote at National Review. Scalia expressed skepticism over the law's mandate during oral arguments.
Because Chief Justice Roberts joined Justice Anthony Kennedy on the liberal side of the Arizona case on Monday, Bloomberg's Noah Feldman argued that Roberts may have been trying to persuade Kennedy to his side on the health care decision.
The mandate, and the entire law, is upheld
The administration is confident that the health care law is constitutional and in keeping with decades of precedent, White House spokesman Jay Carney said Tuesday, and the White House is ready to continue implementing it accordingly.
Tom Goldstein, the head of SCOTUSblog, agreed Wednesday, writing that he believes the mandate will not be invalidated.
"Based on the entire mix of information I have, I think the mandate will not be struck down tomorrow," he wrote. "(I don't have any inside information, nor does anyone else.) My prediction includes the possibility that there will not be a single majority opinion for the theory on which the mandate is upheld, and even the thin possibility that the court will not have a majority to find the mandate constitutional."
Roberts' former law professor agreed with Carney and Goldstein as well.
"I do think the court will surprise a lot of people when it probably upholds the Affordable Care Act in an opinion written by another former student of mine, Chief Justice Roberts, this Thursday," constitutional law professor Laurence Tribe said on MSNBC. "You can be deeply conservative and still believe that the Affordable Care Act is completely consistent with the United States Constitution."
For Roberts, the issue may come down to respect for the court, various sources have suggested. With the law being a centerpiece of the president's domestic agenda, Roberts may uphold the individual mandate and the law on a 6-3 vote in order to keep the court from appearing to be partisan, Jeffrey Rosen, a law professor at George Washington University and legal affairs editor for The New Republic, suggested.
"Roberts is concerned about the Supreme Court's place in history," a Reuters article suggested Tuesday. "He has spoken about the need to preserve the integrity of the bench in deeply polarized Washington and has touted the value of unanimous or near-unanimous opinions."
Scalia's dissension on the Arizona immigration ruling Monday is the best evidence that the law will stand, Sean Trende said on Twitter.
"A former Scalia clerk pointed out to me in 2000 that his opinions get stronger as the term gets worse for him," he said in another tweet. "It's generally held."
Patrick Kennedy, son of the late Ted Kennedy and a former representative from Rhode Island, sent out a fundraising email warning that "tea party extremists will go on a rampage" if the law is upheld, and will seek to defeat Obama in the November election and then dismantle the law piece-by-piece.
The Supreme Court punts, or the president turns to executive orders
Judge Brett Kavanaugh of the D.C. Circuit Court of Appeals argued that the Anti-Injunction Act barred the court from considering the mandate until the federal government begins enforcing it, meaning the court could leave the constitutional issues for another day.
Former Attorney General and former White House Counsel Alberto Gonzales suggested Wednesday that Roberts may try to avoid the constitutional issues by voting to allow the individual mandate in the law to take effect before courts issue a ruling on it. However, after oral arguments, court watchers suggested the justices will bypass the Anti-Injunction Act and rule on the case.
Another possible outcome of the case may be one of executive authority, Marc Ambinder of GQ and The Atlantic suggested in a tweet.
"The WH has exec orders RTG if ACA is struck down," he tweeted. "Their content and timing I don't know. But they've got contingency plans a-plenty."
"We will be prepared," Obama aide Valerie Jarrett said when asked about White House plans should the law be struck down.
While it's conceivable that the president could issue mandates that affect private insurers, he couldn't expand Medicaid on his own, or ration Medicare without congressional approval, Avik Roy countered at National Review.
The health care ruling is expected to start around 10 a.m. EST.