On April 4th, I wrote:
I previously said that I thought the Justices were just making a show at oral argument and would ultimately not find it unconstitutional because “the Supreme Court hasn’t found a major piece of economic legislation unconstitutional for violating the enumerated powers of Congress since the 1930s.”
But instead of repeating what I said above, Obama put his foot in his mouth and said the Supreme Court shouldn’t overturn any laws passed by a democratically elected Congress. I think that the Supreme Court will respond by proving Obama wrong. The Supreme Court will probably find the law unconstitutional based on a technicality of wording. You can’t force people to buy health insurance, but it’s OK to raise their taxes and give them free health insurance, so the statute would just need to be revised to put it that way. Which probably won’t happen because of the deadlocked political process.
I think my previous post is very interesting in light of what actually happened. There has been evidence that Roberts changed his mind at the last minute. I think he was pissed at Obama and was going to find the law unconstitutional (which would have created a 5-4 majority), but then decided it would be bad jurisprudence to find a law unconstitutional because of a “technicality of wording.” As I wrote in April (and it wasn’t an original thought), everyone agrees that it’s OK to raise taxes and give people free health insurance. That’s Medicare. It’s also OK create a tax credit for buying an electric car, which is no different than creating a tax penalty if you don’t buy an electric car, except the wording is different.