Analysis: A narrower mandate will survive court's scrutiny

The Supreme Court is expected to rule on the constitutionality of the health care reform law Thursday.

Story highlights

  • CNN's Bill Mears has been asked repeatedly what the Supreme Court will do
  • He says the individual mandate will survive, in a narrow fashion
  • Chief justice will probably write majority opinion upholding mandate, Mears says
  • He may have to think small and narrow: insisting that health care is unique in economy
I have no inside information on what the Supreme Court will do Thursday on health care -- no one does -- nor any bit of wisdom that has not already been articulated by others, including CNN's fine team of reporters, analysts and contributors.
But since I have been asked repeatedly to predict the outcome, I will go against conventional wisdom and say the individual mandate -- which requires most Americans to purchase health insurance -- will survive, but in a narrow fashion.
I believe Chief Justice John Roberts will write the majority opinion upholding the mandate. One of the few stated prerogatives the chief justice commands when he is in the majority is the power to assign the all-important opinion-writing. It is through these opinions the court speaks, from where it derives its power and institutional prestige and authority.
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If Roberts takes on this task, he will most likely try to navigate between two polar views on the mandate's constitutionality and the power of Congress to regulate "commerce."
That division was clear from the oral arguments: Roberts and Justice Anthony Kennedy asked tough questions of both sides at argument.
Roberts' reasoning for either upholding or striking down the mandate may not command a majority, meaning at least five justices agree on the outcome but not the constitutional basis on which the decision sits. That split reasoning could sow further uncertainty if and when Congress and the White House were to revise or entirely rework health care reform in the wake of the court's decision.
The tricky task of commanding a five-vote majority and keeping it over the weeklong contentious opinion-writing process may leave Roberts -- or whoever -- thinking small and narrow: upholding the mandate by insisting that health care is unique in the national economy and warning Congress not to go much further when regulating "commerce," i.e., no mandate to buy broccoli or American cars.
Only the justices, their law clerks and a handful of court officials know how this will end. But you can expect a complex, lengthy and perhaps baffling ruling or series of rulings.