Today the Supreme Court heard arguments about the severability of the individual mandate in the Affordable Health Care bill and the expansion of Medicaid.
The day after the Supreme Court suggested that President Obama’s health care law might be in danger of being held unconstitutional, the justices on Wednesday turned their attention to the practical consequences and political realities of such a ruling.
The justices seemed divided on both questions before them: What should happen to the rest of the law if the court strikes down its core provision? And was the law’s expansion of the Medicaid program constitutional?
The two arguments, over almost three hours, were by turns grave and giddy. They were also relentlessly pragmatic. The justices considered what sort of tasks it makes sense to assign to Congress, what kinds of interaction between federal and state officials are permissible and even the political character of the lawsuits challenging the law. One justice dipped into Senate vote counting.
The court had in other words, on the third and final day of a historic set of arguments, moved from the high theory of constitutional interpretation to the real-world consequences of what various rulings would entail.
The arguments on severability, which hinged totally on whether the mandated stays or goes, boiled down to three points:
1. sever only the mandate, allow the rest of the law to stand and let Congress sort it out;
2. sever the mandate along with insurance regulations like guaranteed issue and community rating, to prevent what the government argues would be an insurance death spiral;
3. or throw out the whole law, which did not include a standard severability clause.
The Justices seemed divided over point #2 and #3 rather than #1. For the most part, the discussions and comments were reflective of the consequences of overturning the entire law or any part of it:
[..] A common reaction, across the bench, was that the Justices themselves did not want the onerous task of going through the remainder of the entire 2,700 pages of the law and deciding what to keep and what to throw out, and most seemed to think that should be left to Congress. They could not come together, however, on just what task they would send across the street for the lawmakers to perform. The net effect may well have shored up support for the individual insurance mandate itself.
The dilemma could be captured perfectly in two separate comments by Justice Antonin Scalia – first, that it “can’t be right” that all of the myriad provisions of the law unrelated to the mandate had to fall with it, but, later, that if the Court were to strike out the mandate, “then the statute’s gone.” [..]
Justice Anthony Kennedy, who is considered the swing vote on the individual mandate, expressed concern “possible unintended consequences in the form of huge costs to insurance companies if the mandate – which would bring millions of healthy young people into the healthcare system and spread out costs – was invalidated alone”:
“We would be exercising the judicial power if one … provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended,” Kennedy said. “By reason of this court, we would have a new regime that Congress did not provide for, did not consider.”
The four liberal justices expressed deep reservations about tossing out the sweeping law that has hundreds of other provisions, some of them already in effect.
Justice Sonia Sotomayor, one of the four and an Obama appointee to the court, asked whether the court should allow Congress to decide what to do next. “What’s wrong with leaving it in the hands of people who should be fixing this, not us?”
Justice Ruth Bader Ginsburg went further. She said many parts of the law had not been challenged in court. “Why make Congress redo those?”
On the matter of Medicaid expansion a majority of the justices were inclined to support the government’s role in prodding states to expand the state-federal Medicaid healthcare program for the poor, providing coverage for an estimated 17 million Americans:
The court’s more liberal justices all expressed puzzlement about why there should be a problem with the expansion in light of the fact that it is almost entirely to be paid for by the federal government. The states say they are being coerced into participating because a decision not to may cause them to lose not only the new money but also existing funds.
Justice Elena Kagan described a hypothetical program only slightly different from the real one. “It’s just a boatload of federal money for you to take and spend on poor people’s health care,” she said to a lawyer for the states, Paul D. Clement. “It doesn’t sound coercive to me, I have to tell you.” [..]
He (Chief Justice John G. Roberts Jr) said the court’s decision on the Medicaid expansion should be informed by the reality that the states have “since the New Deal” cheerfully accepted federal money.
“It seems to me that they have compromised their status as independent sovereigns because they are so dependent on what the federal government has done,” the chief justice said.
Justice (Antonin) Scalia addressed the political realities of the litigation itself, asking Mr. Clement whether there was “any chance that all 26 states opposing it have Republican governors, and all of the states supporting it have Democratic governors?”
Mr. Clement responded, “There’s a correlation, Justice Scalia.”
In her last article on Wednesday’s sessions, Slate‘s Dahlia Litwick gives her assessment of the last three days:
Amid all the three-day psychodrama, it’s easy to get confused about what’s happened and what hasn’t. Court watchers seem to generally agree that the individual mandate is in real peril and will rise or fall with Chief Justice Roberts and Justice Kennedy. Court watchers also agree that 19th-century tax law-while generally adorable-will not prevent the justices from deciding the case by July. And they also agree that they may have counted five justices who appear willing to take the whole law down, along with the mandate, and the Medicaid expansion as well.
But the longer they talked, the harder it was to say. A lot of today’s discussion started to sound like justices just free-associating about things in the law they didn’t like. That doesn’t reveal all that much about the interplay between the four separate challenges-what happens when they all have to be looked at together-or anything at all about what will happen at conference or in the drafting of opinions. Could the five conservative justices strike down the entire health care law, and take us into what Kagan described this morning as a “revolution”? They could. Will they? I honestly have no idea anymore. As silent retreats go, this one was a lot less enlightening than I’d hoped.
Constitutional law professor Jonathan Turley discussed the hearings with Keith Olbermann on Countdown, calling this case a “game of chicken” that “can be deadly.”
Dr. Kim’s name was not among those widely bandied about since Mr. (Robert B.) Zoellick announced his plans to move on last month. Highly respected among aid experts, Dr. Kim is an anthropologist and a physician who co-founded Partners in Health, a nonprofit that provides health care for the poor, and a former director of the department of H.I.V./AIDS at the World Health Organization. [..]
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