Specifically, they are considering:
- Are the insurance mandate penalties a type of tax that can only be legally challenged after it is collected? (Refers to the Anti-Injunction Act)
- Does Congress have the constitutional power to mandate insurance (from the Commerce clause). Can congress charge people money for not doing something?
- If it is not-constitutional, does the rest of the law become invalidated?
First, in my own humble opinion it is in fact a tax. Buy health insurance, pay less money to the government. Don't, pay more. By that logic, the ruling should be "Delayed till implemented" and then of course, declared constitutional because the IRS already taxes us for not doing things.
But I don't think SCOTUS will do that. I think they will hate the idea of delaying this - it complicates people's financial planning tremendously, and I think they just want to end this crap.
But I do believe they will rule that it is constitutional. Most of the existing courts have already ruled that way. Only one federal appeals court in Richmond Virginia said it was a tax that could not be challenged till after it was collected. Of the 4 appeals courts that have ruled on #2, only one said it was unconstitutional. (source)
In addition, the courts have found that congress can order us to buy vaccines (with our own money). In fact, Congress has already forced us to buy health car - it's called Medicare, talk to any senior citizen. If they can make us buy health care from the government, they can surely give us greater personal control by letting us pick the corporation to pay instead of requiring us to pay the government. Just like auto insurance.
Obama's care fans have a lot of reasons to be optimistic. Scalia, one of the most conservative judges, has in the past ruled that Congress does have more power from the Commerce clause than most conservatives have felt. So has Chief Justice Roberts and Kennedy. Kennedy is the most liberal of the conservative appointed judges, while Scalia is generally considered the most conservative judge on the court. (source). I personally feel that Scalia is a stretch. In the past he has demonstrated he would rather stick with his gut then with his personal philosophy - he is a a conservative first and a constitutional scholar second. But Roberts and Kennedy are prime suspects. Roberts hates to make big law and Kennedy is a solid moderate, likely to let the government do more, rather than less.
Judge Thomas and Judge Alito are expected to follow the conservative line and vote against Obamacare simply because it is a conservative talking point. Next up are the liberals. None of the liberal justices are known to have issues with health care or with expanding the government. We have two judges chosen by Clinton and two judges chosen by Obama, all of whom are likely to look at this as a straight out partisan ploy by the conservatives to overturn a fairly enacted liberal law. I don't think they see any problems with giving Congress this power.
That gives the healthcare law four solid votes and 3 good opportunities to craft a majority ruling. Given Chief Justice Robert's past rulings, I think most likely they will craft a weak rule that validates ObamaCare as constitutional laws, but not a tax, and to do so without any major implications. Roberts doesn't like making new law, he likes to let things be. Which means he will craft a decision that will make Kennedy definitely agree with. In part I think Roberts will do this so as to avoid a situation where it is 5/4 in favor of the law, with Kennedy crafting a ruling that is stricter, granting the US Congress even more power.
I bet the final vote will be 6 to 3 against (Roberts, Kennedy, Kagan, Sotomayer, Breyer, Ginsburg vs Alito, Thomas and Scalia). We will know in less than a year.