Is it all over but for the waiting (and then the wailing) over the Supreme Court’s decision later this June on whether the individual mandate in the Affordable Care Act is unconstitutional?

 Sifting through the Evidence

In ancient times, soothsayers used anomalies in animal entrails to predict or divine future events. The technical term for such ritual slaughters in special ceremonies was “extispicy” (not to be confused with “extra spicy”).

Most media reporters and analysts are more sophisticated today when it comes to forecasting how the Supreme Court will rule. With apologies to Warner Wolf, their gut reactions usually start with the phrase, “Let’s Go to the Audio Tape!”

Although the questions and comments of the nine justices (uh, make that eight, while Clarence Thomas remains within his individual Cone of Silence) during last week’s oral argument are only possible early indicators of how they finally will vote, they supply the speculative markers for the latest Washington parlor game.

Scalia Takes the Lead

Justice Antonin Scalia undoubtedly took the lead in pointing out the many holes in the government’s constitutional case for the mandate:

• The regulation of health insurance purchasing has to be “proper,”

• The relevant market here is not health care,

• It’s a self-created problem for the government, and

• If the federal government can do this, “what else can it not do?”

 Key Justices

But in putting together an effective 5-4 majority, the key justices are Anthony Kennedy and John Roberts. Justice Kennedy’s remarks during the opening rounds of argument last Tuesday raised the most concerns among defenders of the individual mandate. They should be afraid, be very afraid:

• “Can you create commerce in order to regulate it?”

• “Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to go into commerce.”

• If so, doesn’t the federal government have “a heavy burden of justification” under the Constitution “when you are changing the relation of the individual to the government in this …unique way?”

• “And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases.”

• “[T]he reason this is concerning is because it requires the individual to do an affirmative act.”

• “Can you identify for us some limits on the Commerce Clause?”

Of course, Justice Kennedy would have disappointed if he did not also toss out a few more ambiguous “on the one hand, but on the other hand” comments:

• “I’m not sure which way it cuts, if the Congress has alternative means…In one sense, it can be argued that this is what the government is doing [use the tax power to raise revenue and just have a single payer]; it ought to be honest about the power that it’s using and use the correct power. On the other hand, it means that since the Court can do it anyway – Congress can do it anyway, we give a certain amount of latitude.”

Whatever.

Although even his past clerks often cannot predict which way Justice Kennedy will vote, his judicial weather vane seems to be pointing more in an “unconstitutional mandate” direction.

Chief Justice Roberts is seen as skeptical about the constitutional bona fides of the mandate but also looking to ensure that any final Court ruling can be understood and accepted by the general public. His comments reveal concerns about opening a new door to congressional power that cannot be subject to constitutional limits in unanticipated future cases.

• “[T]he states are not limited to enumerated powers. The Federal Government is.”

• “[I}t’s critical how you define the market….But your theory is that there is a market in which everyone participates because somebody might need a certain range of health care services, and yet you’re requiring people who are not – never going to need pediatric or maternity services to participate in that market.”

• “Is your argument limited to insurance or means of paying for health care? …But once we say that there is a market and Congress can require people to participate in it …it seems to me that we can’t say there are limitations on what Congress can do under its commerce power, … all bets are off, and you could regulate that market in any rational way.”

• “But next year, they can decide everybody’s in this market; we’re going to look at a different problem now, and this is how we’re going to regulate it. And we can compel people to do things – purchase insurance, in this case; something else in the next case – because…we’ve accepted the argument that this is a market in which everybody participates.”

• “[O]nce we say this is within Congress’s commerce power, there’s no reason other than our own arbitrary judgment to say all they can regulate is the method of payment. They can regulate other things that affect this now-conceded interstate market in health care in which everybody participates.”

• “But what I’m concerned about is, once we accept the principle that everybody is in this market, I don’t see why Congress’s power is limited to regulating the method of payment and doesn’t include as it does in any other area… [O]nce you’re in the interstate commerce and can regulate it, pretty much all bets are off.”

 Better Make that “LifeCall”

The old betting line for the individual mandate and the Affordable Care Act has shifted. ObamaCare is the underdog and can’t just run out the judicial clock. It’s on the downhill side of a slippery slope, perhaps one Supreme Court vote away from admitting that it’s “fallen and can’t get up.”