Wednesday, March 21, 2012

The Affordable Care Act Case and the Income Tax Case


Over at the Atlantic Online, I discuss the odds that the Supreme Court will strike down the individual mandate (still not very good) and the Medicaid expansion (even less likely). Marty Lederman has offered a splendid analysis of the individual mandate issues here, and, of course, readers of this blog know that Andy Koppelman, Neil Siegel, and I have gone over the doctrinal arguments many times before.

So for a change of pace, I point out that, if we use regime theory in political science, the most likely prediction is that a majority of the Justices will defend the basic commitments of the current constitutional regime, which is the New Deal/civil rights regime as inflected by the Reagan era. If they do, the act stands.

It is true that the Tea Party wants to stage a constitutional revolution that would change basic constitutional assumptions, but the Tea Party has not taken the White House yet, much less both houses of Congress, and there is only one Justice-- Clarence Thomas-- who seems to be close to its views. This is nothing like 1937 (or 1962).

If the Court did strike down the Affordable Care Act, the closest analogy from the standpoint of regime theory would be
Pollock v. Farmer's Loan and Trust Company in 1895, which struck down the federal income tax. Gerard Magliocca has developed the very useful idea of a "preemptive" judicial opinion to explain cases like Pollock, and he has also argued that the Affordable Care Act case might be another example where the Court reaches out to nip unwelcome constitutional developments in the bud. I offer a few additional reasons why that might be so, although, ultimately, I don't think that is what is going to happen. But I have been wrong before!

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