Legal Commentary

What Are the Chances that the Courts Will Strike Down the Individual Mandate?

By Orin Kerr

With all this blogging here at the VC about whether the courts will invalidate the individual mandate as exceeding Congress?s Article I authority, I thought I would add my two cents by estimating the odds of that happening. In my view, there is a less than 1% chance that courts will invalidate the individual mandate as exceeding Congress?s Article I power. I tend to doubt the issue will get to the Supreme Court: The circuits will be splitless, I expect, and the Supreme Court will decline to hear the case. In the unlikely event a split arises and the Court does take it, I would expect a 9?0 (or possibly 8?1) vote to uphold the individual mandate.

Blogging about such issues tends to bring out some unhappy responses, so let me be clear about a few things: (a) I don?t like the individual mandate, (b) if I were a legislator, I wouldn?t have voted for it, (c) I don?t like modern commerce clause doctrine, (d) if I were magically made a Supreme Court Justice in the mid 20th century, I wouldn?t have supported the expansion of the commerce clause so that it covers, well, pretty much everything, (e) I agree that the individual mandate exceeds an originalist understanding of the Commerce Clause, and (f) I agree that legislators and the public are free to interpret the Constitution differently than the courts and to vote against (or ask their legislator to vote against) the legislation on that basis.

But with all of these caveats, I?ll stand by my prediction. I just don?t see lower courts finding these issues difficult, and I don?t see the Supreme Court likely to take the case. I recognize there?s always the theoretical possibility of the Supreme Court doing something totally unexpected ? a Bush v. Gore moment, if you will ? but I think the realistic possibility of that happening is less than 1%.

UPDATE: For more on my sense of where the Supreme Court is on federalism issues, see my 2005 post in response to the then-new Raich case, The Rehnquist Court and Symbolic Federalism. It?s a bit out of date, but still basically accurate.

Full post as published by The Volokh Conspiracy on March 22, 2010 (boomark / email).