Not only that, but if the Supreme Court upholds the law, Obama's opponents will have a rich opportunity to rail against those terrible liberal justices who don't respect the Constitution and its basic structure of limited, enumerated powers: They've said it's "regulating commerce" to tell a private citizen he has to buy a product that he's chosen not to buy. Alarm! Alarm! Don't let Obama appoint any more Justices!If the law is as unpopular as it seems to be, and if the individual mandate is the most hated piece of the law, then the Court, by removing the threat of the law, or at least the mandate, on constitutional grounds, would remove a big reason to oppose Obama, no?
But if the Court strikes down the individual mandate, Obama will suddenly be able to say: Those terrible activist conservatives on the Court! They've illegitimately grabbed the power to veto a law conservatives don't want! They talk about judicial restraint, but look how they set themselves up as a super-legislature when they don't like what Congress has done.
By the way, I think the decision in the case is likely to track the will of the people, as perceived by the Court. So, it's important to advocates to create the appearance of public acceptance or public outrage over the law. This demonstration of public opinion should happen anyway as the presidential campaigns move forward. It will be fascinating to see what happens when the Supreme Court decision plops into that discourse.
If the Supreme Court uphold the individual mandate, Republicans will say: Now it's crucial to win the presidency and strong majorities in both houses of Congress so we can repeal this thing. If the individual mandate is unconstitutional, is there nothing Democrats can do? Well, the existing form of legislation is out, but there are other ways to extend health care that would not meet the same constitutional problem. But would Democrats want to argue that they need to win the presidency and strong majorities in both houses of Congress so they can push through some new health care reform? I doubt it. What a nightmare it was the first time, devastating the path of the Obama presidency and giving rise to the Tea Party!
Thinking through all these permutations, I'm guessing the Supreme Court will strike down the individual mandate. The existing doctrine doesn't require that outcome, but I'm reading the political forces at play and assessing the Court's vulnerability to those forces, and that's my interpretation.
IN THE COMMENTS: Garage Mahal asks: "Will Thomas recuse himself?" Here's a better question: Considering my analysis above, if Thomas recuses himself, should we see him as extracting himself from politics or slyly and deviously playing politics?
Interesting thought. That obama's drive to get it to the Supreme Court could be a tactic to dump the unpopular bill, without losing face in doing so. And give clout to attack his critics in the process.