Constitutional Experts: Mandate Should Be Upheld, But Likely Won’t Be

June 24, 2012 12:44 p.m.

The individual mandate is constitutional and should be upheld by the Supreme Court, according to a survey of experts conducted by Bloomberg News. However, only a minority believe this is what the court will do when they hand down a ruling on the health care law next week.

In a broad consensus, 19 of the 21 respondents said that the mandate should be upheld. The survey was emailed last week to constitutional law professors at the U.S. News & World Report’s top 12 law schools. There was less agreement on how exactly the opinion would come down. Five said that the Court is likely to strike down the individual mandate anyway while 8 believed it as a toss-up.”In responses to the survey, the experts’ predictions were often determined by whether they felt precedent or “hostile questioning” during oral arguments were more indicative of the final outcome.

In one response, Jesse Choper, a law professor at the University of California at Berkeley, dismissed the “hostile” questions from the conservative justices. Instead, he said the Supreme Court is likely to uphold the mandate due to precedent. “It’s relatively straightforward — if they adhere to existing doctrine, it seemed to me they’re likely to uphold it.”

Conversely, Christina Whitman at the University of Michigan’s law school gave more weight to oral arguments than precedent in making her prediction. Whitman said that although precedent “makes this a very easy case,” the mandate is likely to be overturned based on what she heard during the arguments in March. “But the oral argument indicated that the more conservative justices are striving to find a way to strike down the mandate,” she said.

Almost all of the respondents, 18 out of 21, said that the Supreme Court will lose credibility if the mandate is struck down in a 5-4 decision. If that should happen, “it looks like the court is simply an arm of one political party,” University of Chicago law professor Dennis Hutchinson told Bloomberg.

Though the professors were split on whether the court would strike down provisions of the law related to the mandate, 15 of the 21 thought that the entire law would not be struck down.

Only one respondent, Bruce Ackerman of Yale University, said that the Supreme Court is very likely to uphold the mandate.

“I continue to find it extremely unlikely that Justices Roberts and Kennedy will support a 5-4 decision that has such an insubstantial basis in 75 years of Supreme Court case law,” Ackerman said.

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