The Republicans claim that the federal government cannot compel individuals to purchase anything. My quick answer to that is that the federal government compels me to pay taxes, a good bit of which goes to purchase bombers and bombs and other paraphernalia of war, which I don't want to do.
But there is in fact precedent under the Commerce Clause that allows the federal government to regulate interstate commerce. It's in the Constitution. However, there is disagreement on how much regulation.
With the opposition coming primarily from Republicans, and with SCOTUS comprised of 5 conservatives appointed by Republican presidents and 4 liberals appointed by Democratic presidents, one might think it would be struck down. Not that they always follow the partisan divide -- but in so many cases lately, it's been a 5-4 split along those lines.
Not so on this one, say many SCOTUS scholars. Some are even predicting a 7-2, or possibly even an 8-1 decision to uphold the law. Why?
A little thing called stare decisis -- meaning you stand by precedent from previous SCOTUS decisions, absent a compelling reason to change it.
As recently as 2005, even Scalia voted to allow federal law to overrule state law where it concerned interstate commerce. He wrote a separate opinion, in which he emphasized that this is permitted under the Necessary and Proper clause -- i.e., when the contested activity is necessary for the success of the overall activity that is being regulated.
People are interpreting this as meaning that Scalia would have to reverse himself to vote to strike down the individual mandate, because it is necessary and proper for the overall success of the Affordable Health Care Act.
Insurance companies are being required to drop "pre-existing condition" when writing new policies. In order to offset their greater cost for health care, the insurance industry must have a larger pool, including all those healthy people who think they don't need insurance, or those who plan to wait until they do and then purchase it, since preexisting condition to longer applies. That would be disaster for the whole plan.
In addition to Scalia, some are saying that Roberts might very well vote to uphold, because he is especially concerned that the Roberts Court act with restraint and caution in overturning precedent.
And then there is Kennedy, who often provides the swing vote on close decisions. For the possible 8-1 decision, Alito might possibly come on board too.
Only Thomas is considered a sure vote to strike. And that's true, even without his wife's very public position, including making a six-figure salary from a foundation created to fight health care reform. He should recuse himself, but he hasn't given any indication that he will.
It's said that the governments lawyers are pitching their argument to Scalia and his prior opinion.
Ralph
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