by Michael Smerconish – 06/28/12 –

The Supreme Court decision on Obamacare came as quite a shock to many. Whereas the legal community was split as to whether the individual mandate would be upheld before the oral arguments, the pointed questioning by the justices concerning the commerce clause during the arguments caused many to later predict that the central tenet to the law would be declared unconstitutional.

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For example, on air this past Monday, I shared that in a survey of 56 former Supreme Court clerks, 57% thought the individual mandate would be overturned. That was a 22-point jump from the last time the same group of clerks was surveyed, which was right before oral arguments. Back then, only 35% thought the court would overturn the required purchase of health insurance.

Why the change? Again, because most of the clerks believed the tone of the justices’ questioning during oral arguments evidenced opposition to the commerce clause being used as a justification for the individual mandate.

Similarly, on InTrade, the estimated likelihood of the Supreme Court overturning the mandate was at 79.9 percent last Wednesday morning, and last I checked, this past Monday morning, it stood at 78.1% (Remind me not to take their advice on my Super Bowl picks!)

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But not all constitutional pundits were caught flat footed.

Jack Balkin got it right. He’s a constitutional law professor at Yale Law School, who wrote for the New York Times on March 28, 2012 are recognized that it would be the Congress’ taxing authority, not the commerce clause, that would provide a basis for upholding the law:

“The individual mandate, which amends the Internal Revenue Code, is not actually a mandate at all. It is a tax. It gives people a choice: they can buy health insurance or they can pay a tax roughly equal to the cost of health insurance, which is used to subsidize the government’s health care program and families who wish to purchase health insurance.”

The Constitution gives Congress the power to tax and spend money for the general welfare. This tax promotes the general welfare because it makes health care more widely available and affordable. Under existing law, therefore, the tax is clearly constitutional.”

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The point is that while many were surprised by Chief Justice John Roberts siding with the liberals, there was a legitimate legal basis for him to do so, one that was recognized well in advance by Professor Balkin and others. Having said that, I suspect that an additional motivation might have been to quell the criticism that everything the court has been doing lately on major matters has been decided on a very partisan basis. Chief Justice Roberts may have chosen this opportunity to establish himself as a true umpire in the context of polarization.