1. Let’s remember the central issue, as summarized by Ilya Somin at Volokh:
If the Court ends up striking down the mandate (which I continue to believe is a 50-50 proposition), it will be because the federal government failed to come up with a good explanation of how the law can be upheld without giving Congress nearly unlimited power to impose other mandates. Although both sides in litigation have come up with numerous interesting points, I continue to think that this is the central issue in the case, and the biggest flaw in the federal government’s case.
2. If the mandate is overturned, brace yourselves for charges of “activism.” Rubbish. The High Court just struck down the essential provisions of Arizona’s immigration law — have you heard any liberals screaming “activism?” Even lower court judges who upheld the mandate acknowledged its unprecedented nature. With no precedents directly on-point, how can the court be “activist?”
3. To those who say “but the mandate is a conservative idea” because some folks at Heritage supported it during Clinton, tell them, with all due respect, that the Heritage Foundation does not have a monopoly on conservatism. As long ago as 1993, there were conservatives pointing out that there is no constitutional basis to force people into the insurance market. See this 1993 WSJ piece from David Rivkind.
4. And finally, if the Court upholds the mandate (heaven forfend), keep your courage up. This is not the end of the game, as there are future court challenges (on other grounds) in the pipeline. There are, for example, suits to challenge the IPAB death panel as well the IRS’s planned imposition of taxes not authorized in the statute — see this bracing column by Jonathan Adler and Michael Cannon. And one of our own members K. Douglas Lee has been involved in a very robust challenge to the law — and that’s another lawsuit that could, I believe, continue even if the mandate is upheld.
Good luck to all of us!