Supreme Court Ponders Severability: Justice Kennedy Wonders If Leaving Law Stand, Without Mandate, Would Be More "Extreme" Than Just Voiding The Whole Law

Steven den Beste wonders if Obama's best possible outcome is to find that the mandate is unconstitutional, but the law could otherwise be upheld without it. That could actually destroy the private health insurance markets, because if insurers are required to insure everyone but there is no mandate, someone who just got into a car accident would sign up as he entered the operating room.

No one would have to carry insurance... except at the moment he needed it.

That would destroy the system and then maybe they could then try for what they really wanted, single-payer.

That said, the Administration argues that if the mandate falls, only one other provision of the law directly dependent on the mandate -- the guaranteed issue provision, that you must cover anyone who applies -- would have to go. If the mandate goes, the guaranteed issue goes. Or at least the Administration concedes that much.

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 the mandate is also a revenue-raising provision, and the bill's enormous funding relies on Mandate Money to be slightly less enormous.

Clement argued, however, that so many provisions of the law were so interconnected that if they got rid of all of them, they'd only be left will a hallowed out shell of a bill, which they never would have passed. He said it's called the "Patient Protection and Affordable Care Act" and the mandate is a key to what makes it affordable.

Kennedy wonders if leaving this dying, hollowed-out animal on the side of the road wouldn't be inhumane. Maybe best to just shoot it in the head.

Justice Anthony Kennedy argued [that removing the mandate but trying to rescue what was left of the bill] could be seen as more "extreme" than simply striking down the whole law.

They're also considering the Medicaid expansion provision challenge today, something that doesn't get mentioned as much as the Mandate. The argument goes that by demanding states expand Medicaid, per the federal government's new diktat, on pain of losing all Medicaid funding (which states have paid for, via citizen's taxes), the federal government is essentially now just deputizing states to do as the federal government commands, and basically ends the federal system of governance. Because if the government can do this, it can just say, next week, "Lower all DUI intoxication levels to 0.02, or you'll lose all your Medicaid funding."

The rebuttal to this argument is that the government does this sort of thing all the time.

But it's a matter of degree. Usually the federal government offers carrots of money -- highway bill funding, etc. -- to work its will.

But with Medicaid, they'd simply be seizing all of a state's Medicaid money if the state didn't expand the program per the federal government's wishes. Sometimes a a matter of degree becomes determinative. For example, in "regulatory takings" cases, the courts allow that laws may restrict property rights without compensation so long as it's a 5% or 10% regulation here or there, but if you try to "take" the entirety of the use of the property by disallowing all building on it, then you owe that taxpayer his fair compensation.

There's a difference between "a little bit here and there" and "all of it."

A bit of a dark horse, but the argument always struck me as much, much stronger than it was being credited as.

Kennedy Continues Straddling The Fence: If parts of ObamaCare get struck down but not others, it would be up to Congress, of course, to do most of the job of repairing the bill into something functional. (Not good, of course, but functional.)

So it worries me that Kennedy, and even Scalia, are troubling themselves to think about what Congress may do in the event of a repeal.

Congress’s capacity to react in a sensible way also came into some question, particularly from Justice Scalia and, in a way, from Justice Anthony M. Kennedy, both of whom 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. Scalia noted the problems in the filibuster-prone Senate. Kennedy wondered whether expecting Congress to perform was a reference to “the real Congress or the hypothetical Congress.”

Guys? it's real simple. It re-enters the legislative process. The same way it did when it had its corrupt birth.

If "nothing gets done," oh my god, we have to live with the same system we had for 50 years before.

I don't like the sort of implicit assumption here that the past Congress, controlled by Democrats, ought to have their permanent stamp on the country. That is, the justices seem to be fretting that their are new Congressmen who won't pass "comprehensive health care reform," so we better stick to what the old Congressmen did.

In Toto: This account makes it sound as if the five conservatives have already decided to not only knock down part of the law, but all of the law.

"One way or another, Congress will have to revisit it in toto," said Justice Antonin Scalia.

Agreeing, Justice Anthony Kennedy said it would be an "extreme proposition" to allow the various insurance regulations to stand after the mandate was struck down.

Meanwhile, the court's liberal justices argued for restraint. Justice Ruth Bader Ginsburg said the court should do a "salvage job," not undertake a “wrecking operation." But she looked to be out-voted.

Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. said they shared the view of Scalia and Kennedy that the law should stand or fall in total. Along with Justice Clarence Thomas, they would have a majority to strike down the entire statute as unconstitutional.

One thing is that I don't trust liberals as far as prognostication. They haughtily dismissed these arguments previously, deciding to not even bother reading or considering the arguments. It would be 8-1 or 7-2 to uphold. These stupid conservatives. Don't they know they're so extreme that the more educated versions of them, on the Supreme Court, laugh at their silly ideas?

But now that that cockiness has been rubbished, they're overreacting the other way, assuming the whole law is gone. Their worlds are spinning, so their bearings are a little off.

(A commenter, whose name I forget, suggested something like that yesterday, and now, considering it, I agree.)

posted by Ace at 01:23 PM

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