Kate Hicks


After a three-day marathon of oral arguments, during which the Supreme Court considered various facets of the Patient Protection and Affordable Care Act, final impressions everywhere are mixed.

Liberal supporters of the law have melted into hysterics on live television over the “train wreck” that was Solicitor General Donald Verrilli’s defense. Smeared in red atop the Huffington Post were, “Obamacare on the Brink” and “Disaster.” James Carville now claims that Democrats will “win” if the Court overturns the mandate.

Conservatives, meanwhile, are practically dancing in the street at the prospect of an unconstitutional ruling, which once seemed a remote possibility. It seems like there’s a bit of a cautious tone in the celebrating – after all, don’t want to raise hopes too much – but the Right is certainly optimistic.

And all this goes to show that we counted a fair number of unhatched chickens.

Between the Left’s certainty of the mandate’s constitutionality, and the Right’s pessimism regarding the Supreme Court (or should I say, Justice Kennedy), everyone seemed to believe that Obamacare would come away from oral arguments relatively unscathed.

In reality, it was hardly the cakewalk many Obamacare proponents envisioned.

On Monday, the Court considered whether it was too soon to rule on the issue of the mandate. Court watchers speculated that the Justices might use the Anti-Injunction Act as their final escape hatch to make a ruling on the mandate. The Court, they argued, might not want to undertake such a politically charged topic in an election year. If there’s a way for them to punt, they’ll likely do it.

But they seemed unconvinced of the fact that the mandate was a tax, pointing to the fact that it’s not in existence to raise revenue – in other words, it’s not a tax in the traditional sense of the word. The Justices hit the court-appointed lawyer arguing in favor of AIA jurisdiction pretty hard, and seemed convinced by the states’ and federal government’s arguments to the contrary. In all likelihood, they will rule (possibly 7-2 or 8-1) that the mandate penalty is not a tax, and therefore, it is not too soon for the Court to consider the individual mandate’s constitutionality.

Kate Hicks

Kate Hicks is one of Townhall.com's web editors. You can follow her on Twitter @KateBHicks.