…for what it’s worth, I’m made uneasy by all the assumptions that SCOTUS will declare the individual mandate unconstitutional when it issues its ruling.
Maybe it’s just my tendency towards brooding, but even though I don’t usually make predictions I’ll go on record here as saying my gut feeling is that the Court will not strike down the mandate. Why? Because the Court is exceedingly reluctant to invalidate a major act of Congress, even one passed with such shenanigans and unsupported by the American people, and so it would require a very high burden of certainty that it’s unconstitutional before declaring it so.
However, my gut feeling is that, if SCOTUS does declare the mandate unconstitutional, it will be a very narrow ruling and the Court will not rule that the entire Act is unconstitutional.
If that narrow ruling occurs, the question is what will happen next. If the Democrats still controlled Congress, they could just go back and change the mandate to a tax. Voila!
But they don’t, and so they won’t. My gut feeling (boy, despite belonging to a person who doesn’t like to prognosticate, my gut is pretty active today) is that they will just lay low and hope to change it after the 2012 election, when they might take control of the legislature again, particularly if they campaign on this issue. I don’t think they will actually succeed in taking control of the House in 2012, but they might figure that at least they’ll have a new banner around which to rally the troops for November (restore Obamacare!), plus another cause: re-electing Obama so that he can appoint a couple more SCOTUS justices and finally get a Court that will cooperate fully with the liberal agenda.
[NOTE: And then there's always court-packing.]
And in this article about why liberal prognosticators originally pooh-poohed the constitutionality problem, when author Peter Baker writes of decades of Court precedent "affirming Congress’s authority to regulate interstate commerce," that's a euphemism. Those precedents have not merely affirmed Congress's authority to regulate interstate commerce, they have expanded it beyond all recognition, beginning with Wickard v. Filburn in 1942, as I wrote in this PJ article.]