It was clear after the oral arguments–realistically, it was always clear, based on the politics and the composition of the Supreme Court–that the large employer mandate was going to be invalidated. The only real question involved the choice of rationale. The untold story of this case is that it could have been much worse.
The large employer decision is based on something called the “Major Questions Doctrine,” a piece of judge-made law that has no basis in the text of the Constitution. It consequently should be, but isn’t, a source of embarrassment for the originalists on the Court. The gist of the doctrine is that administrative rules with great impact on society require clearer justifications within the authorizing statute. By definition, it only applies to really important cases.
The three justices–Thomas, Alito, and Gorsuch–who really want to shut down what they consider to be a grasping, alien administrative state run by arrogant left-wing bureaucrats wanted to base the decision on the doctrine of “nondelegation.” This is a far more sweeping rationale which can potentially apply to any regulation. They didn’t have the votes, however, so they wrote a concurring opinion extolling the virtues of nondelegation and pretending that it has the same meaning as “Major Questions,” presumably with the next administrative law case in mind.
The choice of “Major Questions,” and the decision in the health care worker mandate case, are triumphs for the Chief Justice. As usual, he got most of what he wanted without making the Court look like a home for political hacks. As a result, there is hope for at least some of the Biden administrative agenda over the next three years.