This morning’s session at the Supreme Court took as its operating assumption the idea that the individual mandate in the Patient Protection And Affordable Care Act is, in fact, unconstitutional. After yesterday’s hearings, the consensus seems to be that this is at least a far more likely outcome than many might have thought it would be so it’s obviously a timely discussion. The question before the court was both simple and complicated, what happens to the PPACA as a whole if the Court finds that the mandate is unconstitutional. There were three positions presented. One argued that the Court would have to strike down the entire law if it found the mandate unconstitutional, this is the position taken by the challengers to the law. Another argued that the Court could carve out those provisions of the law that dealt so intently with the insurance industry that they would be unworkable without the mandate, this is the position the Federal Government is taking. In addition to these to provisions, the Court appointed outside counsel to argue a third option, that the Court could leave the rest of the law intact, without carve-outs, even if the mandate is declared unconstitutional.
By the time the morning was over, it seemed clear that the Justices were clearly struggling with the issue:
The Supreme Court began the final day of its review of President Obama’s health-care law Wednesday, considering whether all of the law must fall if part of it is found unconstitutional, and whether its proposed Medicaid expansion violates the federal-state partnership.
Paul Clement, a former solicitor general representing the 26 states that are challenging the law, argued that if its mandate for people to buy health insurance is declared unconstitutional, the rest of the health-care law must be rejected as well. Congress would never have adopted the law’s other major structural reforms to the health-care system without the individual mandate, he told the justices.
But the justices questioned that logic.
Justice Antonin Scalia brought up one of the last-minute deal sweeteners that drafters of the law threw in to win the crucial vote of Sen. Ben Nelson (D.Neb.) — a concession dubbed “the Cornhusker Kickback.” If the court were to declare the kickback unconstitutional due to a constitutional prescription against “venality,” Scalia posited, to titters in the courtroom, would the justices really have to strike the entire law on the grounds that the law could not have made it through Congress without it?
“That can’t be right,” he said.
The questions came a day after Scalia and other conservative justices expressed deep skepticism about the constitutionality of the individual mandate as they grilled the government’s top lawyer, Solicitor General Donald B. Verrilli Jr., on the provision. On Wednesday, the third and final day of oral arguments in a case that has drawn demonstrators from both sides of the issue, it was the challengers’ lawyer who was put on the defensive .
Clement repeatedly tried to make the case that key insurance regulations, which even the administration agrees would have to be struck along with the mandate, are central to the functioning of the law’s other major features — including the state-run “exchanges,” or marketplaces , that the law establishes so individuals without employer-sponsored insurance can buy plans with government subsidies. Unless such people can be guaranteed acceptance by plans on the exchanges regardless of their health status, the law will fail in its goal of expanding coverage to them, said Clement.
Justice Elena Kagan seemed unconvinced. Exchanges “function perfectly well in Utah without a mandate,” she said. “Is half a loaf better than no loaf?” she added. This “seems like the perfect example.”
Clement replied that it would be better to strike the law than to allow it to “limp along” in a way that was vastly different than what Congress intended.
Justice Ruth Bader Ginsburg then brought up the vast array of provisions in the law that are clearly unrelated to it’s core — the reauthorization of benefits from miners who have suffered from black lung disease, for instance.
“There are so many things in this act that are unquestionably okay,” she said. “Why make Congress redo these?”
But during the court’s questioning of the next speaker, Deputy Solicitor General Edwin S. Kneedler, representing the administration, Scalia seemed to suggest that Ginsburg’s reasoning would open something of a Pandora’s box.
“You really want us to go through these 2,700 pages?” he asked. “Is this not totally unrealistic that we’re going to go through this enormous bill and go through each item one by one” to determine whether Congress would have adopted it in the absence of the mandate?
Chief Justice John G. Roberts Jr. sounded a similar theme when the final speaker came before the court: H. Bartow Farr III, a private attorney appointed by the court to argue in favor of a third option — to strike the individual mandate but leave the rest of the law intact.
Roberts worried that in doing so, the court could put insurance companies at risk of bankruptcy. Would the insurers then have to go to court seeking a remedy of their own? Roberts wanted to know.
Farr’s answer was that they should go to Congress, not the courts. He suggested that Congress should also be granted deference to come up with another way of preserving the ban on discrimination against people with preexisting conditions and other insurance provisions in the absence of a mandate, because these measures were the “crown jewels of the law.” By contrast, the individual mandate was just a “tool” to help achieve them, he said.
Kagan was skeptical. Congress seemed to think the system would “crash and burn” without the individual mandate, she said.
Scalia also questioned how much deference the court would be showing Congress by cutting the heart out of the law and leaving the rest intact. Once the heart is gone, “the statute’s gone,” he said.
By contrast, Justice Stephen G. Breyer warned that the court should “stay out of politics.”
“That’s for Congress, not us,” he concluded.
Of course, one could hardly think of anything more political than the nine members of the Court parsing their way through a 2,700 page law and try to ferret out those parts that can or should be saved and those that cannot. The matter is also further complicated by the fact that Congress did not include a severability clause in the law when it was passed in 2010. This is not necessarily dispositive of the issue, of course. Indeed, the Court in the past has struck down portions of a law without striking down the entire law even in the absence of a severability clause. One could argue that doing so is typically appropriate when dealing with legislation. However, the Court finds itself in a difficult position here for several reasons. For one thing, it’s unclear what Congressional intent would be in the event the mandate is struck down. Would Congress want the Court to uphold the rest of the law, or is the mandate so central to the law as a whole that voiding that portion of the law requires the Court to void the law as a whole? Would the rest of the law even passed without the mandate, for example? More importantly, what legal criteria can the Court use to determine which provisions to save and which to scrap? We can sit here and agree that this portion of the bill or that one is a good idea, but that doesn’t answer the legal question of what standard should be used to make that determination. It would be improper for the Court to sit down an do a policy analysis to decide this issue, or to substitute its own preferences for those of Congress. For that reason alone, the Court may likely have no choice but to strike down the law as a whole if it strikes down the mandate. To attempt to do anything else would be to substitute its judgment for Congress’s when it comes to health care policy, which is not how our system is supposed to work.
Philip Klein, meanwhile, takes note of an exchange between the Government’s attorney and Justice Kennedy, who was at the center of yesterday’s hearing:
Deputy Solicitor General Edwin Kneedler, on behalf of the Obama administration, was arguing that only the ban on pre-existing conditions and cap on the cost of policies should be turned down if the mandate was gone. But interestingly, Justice Anthony Kennedy argued this could be seen as more “extreme” than simply striking down the whole law.
CNN’s Jeffrey Toobin, who had called yesterday’s hearing a train wreck for the Administration, was even more pessimistic today:
CNN Senior Legal Analyst Jeff Toobin: “This still looks like a train wreck for the Obama Administration, and it may also be a plane wreck. This entire law is now in serious trouble. It also seems that the individual mandate is doomed. I mean, Anthony Kennedy spent much of this morning talking about if we strike down the individual mandate, how should we handle the rest of the law? Now, it is less clear that they are going to strike down the whole law. There does seem to be some controversy in the court about that. Certainly there are some members of the court, Antonin Scalia, Justice Alito, who want to strike down the entire law, but it seemed almost a foregone conclusion today that they were going to strike down the individual mandate, and the only question is does the whole law go out the window with it?”
Whitfield: “Oh, my goodness. Okay, so I have got about 20 seconds or so left. How might this impact arguments later on this afternoon, Jeff?”
Toobin: “Well, it’s hard to imagine how things could be going much worse for the Obama Administration, but now they’re going to be dealing with the Medicaid portion, and they may decide to get rid of that as well.”
It strikes me that Toobin is being just a little bit over dramatic here. As I noted above, the subject of this morning’s hearing was limited to the very specific question of what happens to the PPACA if the Court does decide to strike down the mandate. In other words, when the Justices walked into the Courtroom today, they were operating from the assumption that the mandate was being struck down strictly for the purpose of this argument. Trying to draw conclusions about how the Court might rule on the issue it heard yesterday based on the oral argument on a completely separate issue today makes no sense at all. This is what I meant when I referred to the dangers of listening to the post-argument punditry. It may well be that the Court will strike down the mandate, but trying to make a guess about that from what happened in a hearing that was based on the hypothetical question What happens if we strike down the mandate? just make Toobin look ridiculous.
As a counterpoint to Toobin’s contention, here’s what Lyle Denniston wrote about this morning’s argument during the break before the afternoon argument on Medcaid expansion:
The Supreme Court spent 91 minutes Wednesday operating on the assumption that it would strike down the key feature of the new health care law, but may have convinced itself in the end not to do that because of just how hard it would be to decide what to do after that. 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 Wednesday morning argument offered the Court three mutually exclusive options: strike down all of the Affordable Care Act along with the mandate (the challengers’ position), strike down only two core changes in the way the health insurance system works (the government position), and strike down nothing but the mandate (the position of a Court-appointed lawyer). Not one seemed to be especially appealing to members of the Court, and each of the three lawyers who came to the lectern faced tough and often skeptical questioning, from across the bench.
Is it possible that the remedy would dictate the result in a case like this? Denniston is a far more experienced observer of the Court than I am so I’m not going to say he’s wrong. He could be right, but it seems to me that if Kennedy really comes to the conclusion that the mandate is unconstitutional then the fact that making such a choice will require him to embrace a remedy that he doesn’t necessarily like won’t be the thing that will change his mind. It’s certainly not the typical way a Judge operates in my experience.
There will likely be further updates from the in-court observers after the afternoon session ends, and I’ll post anything that seems insightful in an update. At this point, though, it seems like this issue may end up being the biggest point of contention between the Justices rather than the Constitutionality of the mandate. If that’s the case, then we could end up seeing an opinion that is made up of shifting majorities depending on which issue they’re dealing with.
Audio of today’s arguments can be found here. My post regarding Monday’s hearings can be found here. My post on Tuesday’s hearing can be found here. And, I’ve embedded the transcript from today’s hearing below:
National Federation Of Independent Business et al v. Sebelius et al SCOTUS Argument Transcript
