The Supreme Court heard arguments this morning on sort of a hypothetical in the Affordable Care Act case: If they were to decide that the individual mandate was unconstitutional, what would then happen to the law? The attorney for the states bringing suit, Paul Clement, argued that the entire law would have to be struck. Deputy Solicitor General Edwin S. Kneedler argued for the government that striking the mandate would also take down the community rating and guaranteed issue insurance reforms (that include dropping or refusing people for pre-existing conditions and forcing certain groups of people to pay outrageous premiums compared to others). The Court appointed attorney Bartow H. Farr to argue that the mandate would be completely severable, that it could be struck without affecting the rest of the law.
SCOTUSblog's Lyle Denniston, who was at the Court to hear the argument firsthand, sees some careful reconsideration of the individual mandates coming from today's questioning.
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 “just couldn’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.” Much of the lively argument focused on just what role the Court would more properly perform in trying to sort out the consequences of nullifying the requirement that virtually every American have health insurance by the year 2014.
Scalia and Kennedy both also "seemed to harbor doubts that the lawmakers would be up to the task of working out a new health care law if this one failed, either totally or partially," says Denniston.
The Court is now hearing the final arguments on the Medicaid expansion in the law. Adam Bonin will have full recaps of both sets of today's arguments a little later.