Beneath the thousands of pages of legal arguments in the health care lawsuits to be decided sooner-or-later by the Supreme Court lies an easier-to-grasp, if largely unarticulated, background question.
Can Congress and the president use an unprecedented and potentially limitless expansion of the power to regulate interstate commerce to avoid the political hazards of calling a tax a tax? Or might some justices effectively impose a constitutional truth-in-labeling requirement?
In order to explore these questions, it's important to first review the current tally of wins and losses. So far, one federal appeals court in June upheld the mandate by 2-1. A second struck it down in August by 2-1. And a third on Sept. 8 threw out two other challenges on jurisdictional grounds. Federal district courts have also issued conflicting rulings.
With more cases in the pipeline, it's certain that the Supreme Court will step in to decide the mandate's fate. The final decision will probably come down next June, if the Obama administration files its petition for review promptly this autumn, but certainly by 2013.
Most legal experts have long predicted that the Supreme Court will uphold it. Although the confidence level has dipped as lower-court judges have gone both ways, Walter Dellinger, former acting solicitor general under President Clinton, predicts a 7-2 vote to uphold. Tom Goldstein, another leading Supreme Court advocate, who represents AARP as a friend of the court supporting the law, predicts 7-2 or 6-3, adding that "the opponents of the law have done a tremendous job at articulating their theory, and they've gotten more traction than I imagined they would," but he doesn't "see a realistic chance of them winning."
But David Rivkin, one of the lead lawyers challenging the health care law, confidently predicts a 5-4 vote to strike down the individual mandate.