watching the nine

My Prediction

I just want to get it on record that this is how I think it comes out tomorrow:

1. A majority of the Justices decide that the Anti-Injunction Act doesn't prevent a ruling on the Affordable Care Act.

2. A majority of the Justices reject the medicaid challenge.

3. A plurality of the justices find the law to be severable

4. A 5-4 majority opinion authored by the Chief throws out the individual mandate on fairly narrow grounds but still manages to upset Commerce Clause jurisprudence seriously (see below), and makes a hash out of the Tax and Spend power.

5. Clarence Thomas writes a special concurrence saying the court doesn't go far enough in restraining Commerce Clause powers.

For the record, I can't for the life of me figure out how they are going to throw out the mandate. They can't do it without changing Commerce clause jurisprudence, and the dissents by in particular Breyer and Sotomayor will point that out. After this, it won't be clear exactly how things work with the regulation of interstate commerce for a good long while, and this will invite lots of new litigation on things that we had thought were long settled. As a result, in the next couple of years, unless we get an unexpected change on the court, we may see regulatory programs being struck down as exceeding the scope of the commerce power that have been in existence for decades.

But after tomorrow they're going to have to change the con law text books. There's no doubt about that in my mind.

EDIT: I was wrong. Thank god.