Bloomberg surveyed 21 top constitutional scholars and found that, while 19 think the individual mandate of the Affordable Care Act ought to be upheld on the basis of legal precedent, just eight think the Supreme Court will actually do so:
“The precedent makes this a very easy case,” said Christina Whitman, a University of Michigan law professor. “But the oral argument indicated that the more conservative justices are striving to find a way to strike down the mandate.”
Five of the 21 professors who responded, including Whitman, said the court is likely to strike down the coverage requirement. Underscoring the high stakes and complexity of the debate, eight described the outcome as a toss-up.
“There was certainly a lot of hostile questioning by the more conservative members of the court,” said Jesse Choper, a law professor at the University of California at Berkeley who described the court as likely to support the mandate. “It’s relatively straightforward — if they adhere to existing doctrine, it seemed to me they’re likely to uphold it.”
This helps explain why – as two stories Sunday morning in the New York Times and the Washington Post detail – nearly all of the predictions, two years ago, just about everyone underestimated the threat of legal challenges. There was – and still is – relatively widespread agreement among constitutional scholars that the individual mandate, is in fact, legal. At the same time, that’s not seen as a guarantee of it being upheld.