Prediction: after today’s oral arguments over the Patient Protection Act, the individual mandate is in very deep trouble and quite probably as good as gone. While Paul Clement’s argument probably did not swing any wavering justices, it likely settled whatever doubts they may have entertained. In any event, it was absolutely brilliant. Personal favorite: a polite but firm dressing-down of Justice Breyer, in one of his increasingly frequent demagogic moments (pages 60-64 of the transcript).
The mandate’s impending demise lends additional interest to tomorrow’s argument over (1) the mandate’s “severability” from the remainder of the statute and (2) the question of whether the statute’s Medicaid expansion is unduly and unconstitutionally “coercive” under South Dakota v. Dole.
The Federalist Society has a podcast debate on the Medicaid issue featuring Richard Epstein and yours truly. (Richard’s amicus brief on the matter appears here.) Friends and occasional co-authors, we agree that the states’ challenge, as presented, is a sure loser; that Dole’s “coercion” inquiry is hopelessly incoherent; and that Medicaid (with or without Obamacare expansion) is a menace to a free society. We disagree as to the nature and scope of constitutional constraints on conditional funding programs
Medicaid hangs together with the severability question and, in particular, the plaintiffs’ rather bold position that if the mandate falls, the entire Patient Protection Act must fall with it. The Supreme Court is not going to sustain the Medicaid expansion on a separate challenge and then mow it down on a non-severability analysis. It remains to be seen, then, what (if anything) will fall with the mandate. For a quick riff on that issue, endorsing a CEI/Tom Miller/Tom Christina amicus brief to the effect that Title I of the PPACA (including health insurance exchanges and coverage requirements) should fall with the mandate, go here.