And however unlikely, it's possible the Supreme Court might rule not to rule at all:
[div class="excerpt" style="border: 1px solid #bfbfbf; border-bottom: none; border-radius: 0.3846em 0.3846em 0em 0em; box-shadow: 2px 2px 6px #bfbfbf;"]Anticipating the health-care decision: In Plain English[div class="excerpt" style="border: 1px solid #bfbfbf; border-top: none; border-radius: 0em 0em 0.3846em 0.3846em; background-color: #f4f4f4; box-shadow: 2px 2px 6px #bfbfbf;"]But before the Court can decide whether the mandate is constitutional, it must first decide whether it can even rule on this question at all. The potential obstacle to the Court’s review of the mandate is the Anti-Injunction Act (AIA), an 1867 law that prohibits lawsuits to challenge a tax until the tax has actually gone into effect and needs to be paid. At least one lower court has concluded (and the federal government once even argued) that the “penalty” which would be imposed on someone who doesn’t buy health insurance under the mandate is a “tax”; therefore, this line of reasoning goes, someone who believes that the mandate is unconstitutional cannot bring a lawsuit making that argument until after the mandate actually goes into effect in 2014.
If the AIA applies to the lawsuit over the mandate, then the Court cannot consider the challenge to the mandate even if both the federal government and the states challenging the law want the Supreme Court to decide the case. So if at least five of the nine members of the Court were to conclude that the AIA does apply to the mandate, that would be the end of the matter. The Court would not discuss, much less rule on, whether the mandate is constitutional, nor would there be any reason for the Court to weigh in on what parts of the law, if any, can survive if the law is unconstitutional – the “severability” question. Instead, the Court would skip straight to the fourth and final question, dealing with the constitutionality of a provision that expands eligibility for Medicaid, the state-federal partnership that provides health care to the poor.
What the Court will in fact decide about the AIA obviously remains to be seen tomorrow. After the oral argument in March, most Court watchers believed that the Court would not regard the AIA as a bar to reviewing the mandate. But if that issue went the other way, that decision would postpone a decision on the mandate until well after the presidential election – which might be an appealing option both for political reasons and if the Court is having a hard time coming up with a majority to resolve the mandate issue.
Based on the questioning by the Justices during arguments, most people think this isn't going to be the case. But I was reading about this last night and I found myself thinking "Wow, that would be the worst possible outcome: Ambiguity for another two years!"
And then the worst thought occurred to me. Most of us think the reason this opinion is being delivered last is because A) It was tough to deliberate and B) The Justices want to make sure they can get out of dodge (they won't have to be back until October) so they don't have to deal with the shit storm after the ruling.
But what if the shit storm they wanted to avoid was because they punted?
(shudder)
PB
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