The III Degree

In 2010, in the last year of the last collective bargaining agreement between the NFL owners and players, there was no salary cap.  Two teams, the Redskins and Cowboys, apparently structured contracts that placed their largest salary cap hit for 2010.  This allowed them to essentially spend more money by paying more in uncapped 2010, so they would be spending less on those contracts in 2011 and beyond, allowing them to spend more money on players in those years.

Tomorrow’s first act of the Supreme Court’s health care arguments are going to be boring.  Why?  Because they are talking about whether they should even be talking about the case.  

There are two issues at stake here - first, is the obscure law called the anti-injunction law, which prohibits law suits against the government over taxes until the government attempts to collect the tax.  Oddly, both the plaintiffs and defendants want the court to rule that this law doesn’t apply.  A separate lawyer has been hired to rule that it applies.

The second issue is a similar concept called “ripeness.”  As anyone who has ever studied Constitutional Law can tell you, a case must be ripe to be decided.  This means that someone must have actually been affected by the legislation.  

Without undertaking to survey the intricacies of the ripeness doctrine it is fair to say that its basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties. The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.

In my opinion, most aspects of Obamacare - including the individual mandate - are not yet ripe for adjudication.  The court, I think, will likely elect not to act.  They will punt the case for not yet being ripe.  (BTW, this ruling is better for health care proponents if they use the anti-injunction law, because it applies to taxes only and that means that they consider the individual mandate to be a tax and thus, within the power of Congress.)

Now, my guess is that Chief Roberts will be the biggest proponent of deciding that the case is not ripe.  He tends to like narrow decisions and there is nothing more narrow than refusing to act for lack of ripeness.  Thomas will vote to strike down the law and will dissent from any opinion that does not follow this exclusively.  Scalia and Alito will both likely want to vote against the mandate (saying it is beyond the scope of the Commerce Clause), but would be willing to say the case is not ripe.

The four liberal justices will want to vote for the law, but will be willing to say the case is not ripe if they think they are going to lose a 5-4 vote.  That puts the vote at 3 for unconstitutional and 4 for Constitutional, with six justices willing to say the case is not ripe.  That leaves Justice Kennedy, and let’s face it, no one knows what Kennedy will do.  SO, we have either a 4th vote for unconstitutional or a 5th vote for constitutional.  

So, what does John Roberts do?  Send out another 5-4 vote from the Supreme Court?  I think he convinces Alito, Scalia, Kennedy and the four liberals to vote for lack of ripeness while letting each side write concurring opinions about how they would have decided the case.