Another federal judge has found the Affordable Care Act unconstitutional because of the individual mandate. That’s two federal judges saying it’s not constitutional, two saying it is, and about a dozen who wouldn’t even hear the challenges.
Even though the large majority of constitutional scholars and law professors say the arguments against the individual mandate are bunk, that doesn’t mean our illustrious Supreme Court won’t rule against it when it gets to the Court. As Greg Sargent says, the future of our health care is in Justice Anthony Kennedy’s hands.
There’s a chance conservatives will come to seriously regret this stratagem. I think it’s vanishingly unlikely that the Supreme Court will side with Judge Vinson and strike down the whole of the law. But in the event that it did somehow undermine the whole of the law and restore the status quo ex ante, Democrats would start organizing around a solution based off of Medicare, Medicaid, and the budget reconciliation process — as that would sidestep both legal attacks and the supermajority requirement.
I still say the biggest reason the Affordable Care Act is safe is that the insurance industry wants to keep the individual mandate. And I think this is a development the Republicans didn’t anticipate and weren’t prepared for. They’ve got the faithful peons worked up into a tizzy to fight the evil mandate. But insurance companies are forging ahead re-tooling their business models and preparing for millions of new customers. If that gets yanked out from under them in a year or two by the Supreme Court, they will not be happy. Not happy at all.