This morning the Supreme Court heard the beginning of the third and final day of argument concerning Obamacare. That argument was devoted to the issue of severability…that is , if the individual mandate is found to be unconstitutional, does the rest of the law fall, or only some, or none of the rest of the law fall. You can listen to the argument here, or read a transcript of the argument here.
The most succinct description of this principle comes from Justice Ginsberg in a question to the attorney for the states:
So why should we say it’s a choice between a wrecking operation, which is what you are requesting, or a salvage job. And the more conservative approach would be salvage rather than throwing out everything. [ See transcript at page 14]
And that question pretty much set the stage for the rest of the arguments.
Before I proceed further you should know that, at the Supreme Court level, the government for the first time argued that if the mandate falls, the requirement that insurance companies must issue insurance to all who apply, and charge the sick no more than the healthy, must also fall.
With that in mind, it appears that that will be the minimal approach the Court will take. But, based upon some questions from the bench, the Court could go further.
Justice Scalia asked if the “Cornhusker Kickback” was found unconstitutional, knowing that the law may not have passed without that Nebraska vote, should the entire law fall? [See page 10]
And this on the issue of Congress’s intent:
CHIEF JUSTICE ROBERTS: — the — the reality of the passage — I mean, this was a piece of legislation which, there was — had to be a concerted effort to gather enough votes so that it could be passed. And I suspect with a lot of these miscellaneous provisions that Justice Breyer was talking about, that was the price of the vote.
Put in the Indian health care provision and I will vote for the other 2700 pages. Put in the black lung provision, and I’ll go along with it. That’s why all — many of these provisions I think were put in, not because they were unobjectionable. So presumably what Congress would have done is they wouldn’t have been able to put together, cobble together, the votes to get it through. [See page 27]
When the Assistant Solicitor General argued that the entire law should not be stricken, but Congress should decide what should be left in, Justice Scalia said:
don’t you think it’s unrealistic to say leave it to Congress, as though you are sending it back to Congress for Congress to consider it dispassionately on balance, should we have this provision or should we not have provision? That’s not what it’s going to be. It’s going to be, these provisions are in effect; even though you — a lot of you never wanted them to be in effect, and you only voted for them because you wanted to get the heart of the — the Act, which has now been cut out; but nonetheless these provisions are the law, and you have to get the votes to overturn them. That’s an enormously different question from whether you get the votes initially to put them into the law. [See page 34]
And then there was an interesting question from Justice Alito followed by one from Justice Kennedy. The context of the question was to assume that the individual mandate falls. That will deny the federal government some $350 billion in “penalty’ income.
Assume that there is a substantial probability that the 350 billion plus… is going to be cut in half if the individual mandate is — is stricken. Assume there is a significant possibility of that. Is it within the proper exercise of this Court’s function to impose that kind of risk? Can we say that the Congress would have intended that there be that kind of risk?
MR. KNEEDLER: Well, we don’t think it’s in the Court’s place to look at the, at the budgetary implications, and we also – [See page 42-43]
There were some lighter moments, too, when Justice Scalia referred to the ever increasing subsidies to individuals to purchase qualified insurance as “unsustainable” [See page 60], and when he doubted that the Senate would ever get 60 votes to approve any needed changes if only the mandate were tossed out. [See pages 71-72].
Bottom line, in my opinion, the Court always takes the least expansive way to accomplish the result it intends, so even if the mandate is found to be unconstitutional, other than possibly Justice Scalia, I do not see the Court throwing out the entire law.
But, please don’t quote me on that.
If you would like to read all of the briefs filed in the Supreme Court on this issue, you can find the links here.