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Supreme Court Ends Marathon ObamaCare Oral Arguments

by | Mar 29, 2012

By Dave Andrusko

The Supreme Court justices Wednesday finished a three-day cross-examination of ObamaCare by jousting over what, if anything, should remain intact should the Court finds the “individual mandate” unconstitutional. The individual mandate (the “minimum coverage provision”) requires that virtually all Americans have health insurance by 2014 or pay a fine.

The so-called “severability” question took on added urgency in light of what was seen by many as deep skepticism Tuesday on the part of a majority of the justices about the constitutionality of the individual mandate.

ObamaCare is a massive, sprawling 2,700-page-long law that (as the New York Times described it) “fundamentally alter[es] the architecture of the American health-care system.” At issue today was what remains if the “heart” of the law—the individual mandate–is removed.

Former Solicitor General Paul Clement, arguing the case for 26 states which are challenging the law, told the justices said the entire law must go—one option for the Court. Edwin S. Kneedler, a deputy solicitor general, suggested that if the court removes the mandate, two provisions would also have to fall: “First is the prohibition against insurers turning away or otherwise discriminating against people with preexisting conditions,” according to N.C. Aizenman and Robert Barnes of the Washington Post. “Second are the law’s limitations on how insurers can set rates.”

The third option (defended by H. Bartow Farr III, a private attorney appointed by the Court because neither side supported it) is to remove the individual mandate, leave the rest, and, implicitly, have Congress revisit the question from there.

Clement maintained that Congress would never have included all the massive changes to the health-care system without the individual mandate. “If the individual mandate is unconstitutional,” he said, “then the rest of the act cannot stand.”

Unpersuaded, Justice Elena Kagan asked, “Is half a loaf better than no loaf?” adding, 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,” according to the Washington Post.

As to Kneedler’s “middle-ground” argument, Justice Antonin Scalia asked “You really want us to go through these 2,700 pages?,” adding “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, in the absence of the mandate, Congress would have adopted it?

And even the court’s four liberal justices, whose questions seemed to suggest they favored leaving a large part of the law intact if the mandate is struck, grappled with which parts.

“[N]early all of the justices seemed troubled by how they should approach the task of deciding which parts of the law should stand or fall in a way that would least trample Congress’ lawmaking authority,” reported Richard Wolf and Brad Heath for USA Today. “Having to pick and choose among the law’s provisions would be a ‘more extreme exercise of judicial power’ than simply throwing out the entire law, said Justice Anthony Kennedy, often the court’s pivotal swing vote.”

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Categories: ObamaCare