Deliberations on the "Last Days" of Obamacare

The U.S. Supreme Court term is winding to a close, with its remaining decisions expected to be announced by Thursday, June 28. Of course, it could hold over its decision for further arguments next term, but that seems unlikely. And that leaves just 10 days for issuance of its decision on the constitutionality of Obamacare.

The opinions, and there will be at least two, a majority and a dissent, are likely already at the printers. The betting wags over at Intrade are quoting a 75% chance individual mandate will be ruled unconstitutional this year. Back in March that was 55%.

My prediction is that the individual mandate is ruled constitutional as a tax but not as an affirmative requirement that you must go out and buy health insurance. Individual states can impose such a requirement but not the federal government, I predict the Supreme Court will rule.

The tax penalty for not having health insurance under Obamacare is $695 a year. The Pelosi-Reid Congress may have gotten to cute about how that was imposed as a penalty but not labelled a tax, but they seem to be able to constitutionally take a lot more than that.

An intriguing question is what the Supreme Court's decision might say regarding a public option to enroll the uninsured. That's essentially how the presumably constitutional Medicare and Medicaid programs currently work. Back in 2009, a public option is what Nancy Pelosi held out for, for so long and to so little point.

Now that's the problem with the conservatives on the Supreme Court. They are very likely to rule Obamacare unconstitutional while leaving open the possibility that Pelosicare is constitutional, which will only encourage her to start talking about the public option again. But they are also likely to suggest that Romneycare as implemented by Massachusetts and any other state that wants to do the same is constitutional.

Obamacare is expensive, a lot of states don't want it, and the voters in those states also say they don't want it. The Supreme Court may well rule that the federal government can provide Obamacare to states that want it but can't force Obamacare on states that don't.

And what would be wrong with that? I'm just not sure how Intrade would settle the bets.