Legal Commentary

More on the Chances Courts Would Strike Down the Individual Mandate

By Orin Kerr

Two quick responses to my co-blogger Jonathan Adler below on the question of whether the courts would strike down the individual mandate.

1) Jonathan focuses on the chances that the Supreme Court would do something surprising and strike down the mandate. But I assume he agrees that to get the case before the Supreme Court, there would first need to be a circuit court that would vote to strike down the mandate. Presumably you?d have to bring the challenge in either the DC Circuit, the Fifth Circuit, or the Ninth Circuit; pray you get a panel with at least two of the circuit?s more aggressive conservatives; and then hope you can get past a rehearing vote. But the odds of that are pretty low. There?s a chance, I think, but it?s a relatively low one. And without that, I don?t think the Supreme Court takes the case.

2) More broadly, I sense there?s a significant amount of agreement among us on the question of how likely it is that the Supreme Court would strike down the individual mandate if it heard the case. As far as I can tell, we all agree it?s unlikely, and that it would take something unexpected. Where we differ is on how likely it is that the Supreme Court might do something unexpected.

Full post as published by The Volokh Conspiracy on March 23, 2010 (boomark / email).