Contributor Post Created with Sketch. The Obamacare Decision Pool

 

Waiting for the Supreme Court to rule on Obamacare and the individual mandate does, I’ll admit, raise a good deal of tension in this health policy fellow’s life. So much work to be done. So much hangs on the balance of this one opinion, for the future of the nation and the scope of government.

What’s there to do but make a wager on it?

If you’d like to participate in the Obamacare Decision Pool, leave a comment below which includes:

  1. The number of votes, one way or the other.
  2. The outcome of the decision.

For number 2, you may suggest a total uphold, a total strikedown, or a partial strikedown. But if it’s the last, you must be specific about what goes: is it the individual mandate only? The mandate plus guaranteed issue and community rating? My own opinion, as I’ve expressed before, is a 5-4 Title I strikedown. A messy decision could be the end result.

Oh, and it wouldn’t be a pool without something to win. So I will put up a copy of The Federalist from 1886, published by T. Fisher Unwin. (You may have to wait a bit, as it is shipping from overseas, but I have a similar edition myself, and it is superb.) Those who guess correctly will have their names thrown into a hat, and one picked out at random to receive an emblem of their prognosticating triumph.

There are 60 comments.

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  1. The (apathetic) King Prawn Inactive

    I’ll go with conventional wisdom. 5-4 decision, the mandate is struck down but found to be severable. As much as I’d like the other issues to be struck down, I see getting the mandate removed as our consolation prize and all we’ll walk away with.

    • #1
    • June 27, 2012, at 8:41 AM PDT
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  2. Shane McGuire Member

    6-3 to strike down all of Title I.

    Why that? Because I’m the only one who is going to say 6-3 to strike the law down, and if it happens I’m a genius, and if it doesn’t, then no one remembers what I said.

    Let me add, that 8 justices will say the Medicaid provision stays, with 2 dissents on that issue.

    9-0 on jurisdiction.

    6-3 on severability.

    • #2
    • June 27, 2012, at 8:45 AM PDT
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  3. Ben Domenech Contributor
    Ben Domenech

    Via Twitter, The Washington Examiner’s Tim Carney predicts a 6-3 total uphold.

    • #3
    • June 27, 2012, at 8:50 AM PDT
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  4. Douglas Inactive

    Purely partisan opposition from from the liberal wing. The mandate goes down 5-4, with all of the wailing and gnashing of teeth from the left about this being a corrupt decision.

    Despite the law written to be unseverable, I predict that Roberts, in a mushy attempt at reconciliation, will make a horrible mess, and bad law, and join the liberals to let the rest of the law stand anyway. I don’t think anyone is really going to be happy about the result when it’s all said and done. Anyone hoping for a clean up or down vote on this thing is going to be vastly disappointed.

    • #4
    • June 27, 2012, at 8:50 AM PDT
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  5. locke91 Inactive

    I join Carney in the 6-3 uphold expectation. I expect Roberts will join with the otherwise 5-4 decision to uphold, simply to mitigate damage. 

    • #5
    • June 27, 2012, at 8:52 AM PDT
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  6. Douglas Inactive
    Shane McGuire: 6-3 to strike down all of Title I.

    That 6-3 number keeps hanging in my head… mainly because I remember Sotomayor’s skeptical questioning during the hearings… but the more I look at it coldly, I just can’t see her betraying Obama this early in the game. So I’m going with my head and not my instinct.

    • #6
    • June 27, 2012, at 8:52 AM PDT
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  7. BrentB67 Inactive

    5-4, Partial Strikedown – individual mandate only.

    • #7
    • June 27, 2012, at 8:54 AM PDT
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  8. M1919A4 Member
    M1919A4 Joined in the first year of Ricochet Ricochet Charter Member

    6-3, total strike down.

    • #8
    • June 27, 2012, at 8:56 AM PDT
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  9. Israel P. Inactive

    Sotomayor shows she’s not willing to fit the racial profile.

    6-3 on the mandate.

    6-3 on severability as well, but the combination is different.

    • #9
    • June 27, 2012, at 9:01 AM PDT
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  10. Shane McGuire Member

    You other people who are saying 6-3 in favor of a strikedown, all or partial, are nuts.

    • #10
    • June 27, 2012, at 9:05 AM PDT
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  11. EJHill Podcaster
    EJHill Joined in the first year of Ricochet Ricochet Charter Member

    6-3 Uphold. The CJ stabs us in the back. John Roberts as Earl Warren. Disaster.

    • #11
    • June 27, 2012, at 9:08 AM PDT
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  12. Profile Photo Member

    5-4 uphold

    • #12
    • June 27, 2012, at 9:09 AM PDT
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  13. Albert Arthur Coolidge
    Ben Domenech: Via Twitter, The Washington Examiner’s Tim Carney predicts a 6-3 total uphold. · 7 minutes ago

    I buy the argument (made in various places such as HotAir) that since Roberts and Ginsberg have written fewer opinions this year than the other justices, then they are the ones writing the majority and dissenting opinions for Obamacare. In this scenario, I don’t see how they would be on opposite sides in a 6-3 decision. If Roberts did join the liberals to uphold the law, surely the only scenario that would lead to a 6-3 decision , then he would be writing the majority opinion. Ginsberg certainly would not be writing the dissent on behalf of overturning the law.

    I believe the decision will be 5-4 striking down the entire law with Roberts writing the Court’s decision and Ginsberg writing the dissenting opinion.

    But then, I voted for Bob Turner last night thinking that he would win the NY Senate primary.

    So, I’m going to revise my prediction. I think the law will be upheld! 6-3!

    I hope that my track record of being 100% wrong holds up.

    • #13
    • June 27, 2012, at 9:10 AM PDT
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  14. Albert Arthur Coolidge
    Shane McGuire: You other people who are saying 6-3 in favor of a strikedown, all or partial, are nuts. · 6 minutes ago

    I agree. I don’t see how it goes down 6-3. 5-4, yes. 6-3, no.

    • #14
    • June 27, 2012, at 9:11 AM PDT
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  15. Ecdysis Inactive

    6-3 to uphold the law in total. Roberts writes the decision trying to limit it to the uniqueness of healthcare and justify his decision as a conservative one (against judicial activism). Breyer writes a special concurrence, evidencing his statist views and his believe that the government could have gone further. Ginsberg gets her last word in before retirement.

     Scalia writes a brilliant and scathing dissent, focusing on how the majorities logic is ridiculous and the individual’s relationship with the federal government is changed forever. Scalia correctly points out that this decision has NOTHING to do with healthcare, the policy decisions of the majority have fogged their reasoning, and federal government is no longer one of limited powers. Thomas and Alito join the decision in full. 

     Twenty years down the road the Commerce Clause is used to justify mandated annual check ups for the collective good. Turn your head and cough.

    • #15
    • June 27, 2012, at 9:15 AM PDT
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  16. The (apathetic) King Prawn Inactive

    Am I the only one contemplating a day off work tomorrow to absorb the decision as soon as it’s out?

    • #16
    • June 27, 2012, at 9:16 AM PDT
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  17. locke91 Inactive

    I think Ecdysis has it right. I think that’s exactly how we’ll see it play out.

    • #17
    • June 27, 2012, at 9:17 AM PDT
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  18. Profile Photo Member

    Oh, why not lob something crazy out there.

    1) 7-2 that the ACA penalty is not a tax under the Anti-Injunction Act. So we don’t have to wait until someone pays a penalty to deal with it.

    2) 6-3 to strike down the Individual Mandate.

    3) 5-4 to retain the other provisions. The mandate is severable.

    4) 5-4 that the ACA can not compel the states to pick up Medicare expansion. This is the one that’s mostly wishful thinking on my part, given the recent AZ immigration case decision.

    • #18
    • June 27, 2012, at 9:20 AM PDT
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  19. Profile Photo Member

    Anti-Injunction Act 9-0, jurisdiction is proper

    Individual Mandate 5-4, exceeds commerce clause authority

    Severability 6-3, Title I is completely struck down

    Medicaid Funding 5-4, violates the principles of federalism (if this is not rendered moot by severability; I am not familar enough with the construction of the legislation to know whether the medicaid funding is under Title I)

    While this seems like a complete win for conservatives, I believe Roberts will write a very narrow opinion that is carefully tailored to just PPACA. Expect broader and scathing concurrences by Thomas and Scalia (especially on the medicaid funding provisions if not moot).

    • #19
    • June 27, 2012, at 9:23 AM PDT
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  20. Jason Whitman Inactive

    I expect a 5-4 decision with Title I falling (which will be a mess). While I would like to see the entire law fall on account of lack of severability, I am not convinced that will happen. http://heartland.org/policy-documents/guide-severability-and-obamacare

    • #20
    • June 27, 2012, at 9:24 AM PDT
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  21. Israel P. Inactive
    Shane McGuire: You other people who are saying 6-3 in favor of a strikedown, all or partial, are nuts. · 22 minutes ago

    Fewer names in the hat.

    • #21
    • June 27, 2012, at 9:29 AM PDT
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  22. BrentB67 Inactive
    The King Prawn: Am I the only one contemplating a day off work tomorrow to absorb the decision as soon as it’s out? · 14 minutes ago

    I think so, you’ve earned it. I am planing on refreshing Rico looking for some wit and analysis KP.

    • #22
    • June 27, 2012, at 9:32 AM PDT
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  23. Profile Photo Member

    Complete strike-down – 5-4

    Roberts, Alito, Scalia, Thomas, Kennedy v. Breyer and the girls.

    • #23
    • June 27, 2012, at 9:32 AM PDT
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  24. Daniel Sattelberger Inactive

    Unanimous decision for penalty, not tax.

    Thomas, Alito, Scalia, Roberts, and Kennedy vote 5-4 to strike down the mandate.

    Kennedy and Roberts join the four liberals to vote 6-3 for severability.

    Roberts writes the majority opinion, limiting the scope of the ruling. Thomas and Scalia write separate concurrences expanding the scope. Ginsburg writes the dissent.

    (Since I’ve basically held to the conventional wisdom so far, I’ll take the slightly more unorthodox route on the severability opinions). Scalia writes the dissent. To mollify the liberals, Roberts gives Ginsberg the majority opinion, but joins Kennedy for a separate concurrence when he realizes what a bad idea that was. The result is a total mess.

    • #24
    • June 27, 2012, at 9:36 AM PDT
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  25. michael kelley Inactive

    Insurance is a bookie’s business. If you can’t cover everyone, the math won’t work. You have to be able to spread your bets out over the entire population or the whole plan is nothing but a 5 Star blankety-blank.

    5-4 the whole thing gets chucked.

    Otherwise, it becomes the Progressive dream and our nightmare – a bureaucracy of Byzantine proportions.

    • #25
    • June 27, 2012, at 9:42 AM PDT
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  26. UWYOFan Inactive

    I will predict a 5-4 total strikedown. And probably won’t be able to sleep tonight. No possibility of a leak to Drudge?

    • #26
    • June 27, 2012, at 9:42 AM PDT
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  27. michael kelley Inactive
    BrentB67
    The King Prawn: Am I the only one contemplating a day off work tomorrow to absorb the decision as soon as it’s out? · 14 minutes ago

    I think so, you’ve earned it. I am planing on refreshing Rico looking for some wit and analysis KP. · 9 minutes ago

    You’re probably familiar but Scotusblog is most a most excellent site for the breaking news. The Court Reporter will distill it first.

    • #27
    • June 27, 2012, at 9:45 AM PDT
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  28. tabula rasa Member
    tabula rasa Joined in the first year of Ricochet Ricochet Charter Member

    5-4 to strike the whole thing down. But then I just heard last year that Santa isn’t real–I still don’t believe it.

    I’m sticking with my guess above, but the more realistic side of me says that Dan (Comment 24 above) has it right.

    • #28
    • June 27, 2012, at 9:49 AM PDT
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  29. Flagg Taylor Member

    5-4 They strike down the whole thing. Roberts writes for the majority and Breyer a dissent.

    • #29
    • June 27, 2012, at 9:51 AM PDT
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  30. Douglas Inactive
    Israel Pickholtz: Sotomayor shows she’s not willing to fit the racial profile.

    6-3 on the mandate.

    6-3 on severability as well, but the combination is different. · 57 minutes ago

    From your mouth to the Lord’s ears. I would be very, very happy to be wrong and you right.

    • #30
    • June 27, 2012, at 10:13 AM PDT
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