Your argument vis a vis a 4-4 tie in the voting for Arizona and Obamacare is spot on. That’s exactly how it would go and your rationale for the Kagan/Arizona recusal strategy is as well.
But there is a problem with a 4-4 tie as I understand it. I believe, as you stated, that the lower court ruling would stand and thus Obamacare would be ruled unconstitutional. But in this specific case that ruling would only apply to the 27 states involved in the suit.
Is that correct?
If so, what happens when the Supreme Court accepts one of the other cases coming up from the Circuit courts where the ruling has been favorable to the administration and we get the same 4-4 tie. What a mess.
What do you think? Could this happen?
BTW, I expect the Supremes to rule against Obamacare but also against Arizona. Just my guess as to how it will all turn out.
If the rule of affirmance upholds the lower court decision, in the case of Obamacare that would mean the 11th Circuit’s decision would apply nationally. That’s what I would expect because it would be tantamount to the Supreme Court itself upholding that decision, and a Supreme Court opinion influences all jurisdictions.
If I am wrong about that, I of course would appreciate any corrections.