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All sides faced some tough questions today, and it felt as though the Justices where carrying all 2,700 pages of this massive burden of a law on their shoulders. No choice seemed to satisfy them, so they set out on a search for the best of the worse. Assuming the mandate is unconstitutional, what do you do with all this other “stuff”?
Paul Clement, arguing for the states, was first. His answer is perhaps the most simple of all. Throw it all out and make Congress start anew.
Congress found that the individual mandate was essential to their operation. And not only can guaranteed-issue and community-rating not stand, not operate in the manner that Congress intended, they would actually counteract Congress’s basic goal of providing patient protection but also affordable care.
Justice Sotomayor was especially hostile to the idea of throwing everything out and suggested Congress was best equipped to make the determination of what to do with the rest of the law.
Why shouldn’t we let Congress do that, if in fact, the economists prove, some of the economists prove right, that prices will spiral? What’s wrong with leaving it to — in the hands of the people who should be fixing this, not us?
Clement’s response did not seem to satisfy her:
No matter what you do in this case, at some point there’s going to be — if you strike down the mandate, there is going to be something for Congress to do. The question is really, what task do you want to give Congress? Do you want to give Congress the task of fixing the statute after something has been taken out, especially a provision at the heart, or do you want to give Congress the task of fixing health care?
Justice Ruth Bader Ginsburg also seemed skeptical of his argument:
Mr. Clement, there are so many things in this Act that are unquestionably okay why make Congress redo those?
Chief Justice Roberts also had questions along the same lines, “A lot of this is reauthorization of appropriations that have been reauthorized for the previous 5 or 10 years and it was just more convenient for Congress to throw it in in the middle of the 2,700 pages than to do it separately.”
Clement suggested the proper test was, “whether the statute can operate in the manner that Congress intended.”
But again, Justice Sotomayor rebutted, saying, “No statute can do that, because once we chop off a piece of it, by definition, it’s not the statute Congress passed. So it has to be something more than that.”
The Justices seemed to be the most hostile to the government’s position, presented by Deputy Solicitor General Edwin Kneedler, who argued that if the Court was to strike down the mandate, it should also strike down the guaranteed-issue and community-rating part of the law, because they cannot stand without the mandate, yet it should let the rest of the law stand.
Justice Stephen Breyer equated Mr. Clement’s argument with that of Mr. Kneedler.
What do you suggest we do? I mean, should we appoint a special master with an instruction? Should we go back to the district court? You haven’t argued most of these. As I hear you now, you’re pretty close to the SG. I mean, you’d like it all struck down, but we are supposed to apply the objective test. I don’t know if you differ very much.
So what do you propose that we do other than spend a year reading all this and have you argument all this?
Justice Scalia expressed the same skepticism with much passion when questioning Mr. Kneedler. He even jockingly invoked the Eigth Amendment (cruel and unusual punishment) in reference to it:
Mr. Kneedler, what happened to the Eighth Amendment? You really want us to go through these 2,700 pages?
And do you really expect the Court to do that? Or do you expect us to give this function to our law clerks?
Is this not totally unrealistic? That we’re going to go through this enormous bill item by item and decide each one?
Justice Breyer put it in more concrete terms:
I think Justice Scalia is thinking, I suspect, of — imagine a tax which says, this tax, amount Y, goes to purpose X, which will pay for half of purpose X. The other half will come from the exchanges somehow. That second half is unconstitutional. Purpose X can’t possibly be carried out now with only half the money.
Does the government just sit there collecting half the money forever because nobody can ever challenge it?
This idea seemed a lost cause for Justice Anthony Kennedy:
By reason of this Court, we would have a new regime that Congress did not provide for, did not consider. That, it seems to me can be argued at least to be a more extreme exercise of judicial power than to strike — than striking the whole.
Lastly, court-appointed attorney H. Bartow Farr, III, presented the position that all other parts of the law should remain if the mandate is struck down. And he didn’t fare much better.
Mr. Farr argued that the mandate was not the “heart” of the bill, but the guaranteed-issue and community-rating provisions were. Those, he argued, “will still open insurance markets to millions of people that were excluded under the prior system.”
Justice Elena Kagan quickly poked holes in his theory in practical terms:
[T]he problem, Mr. Farr, isn’t it, is that they’re going to a pool of people that will gradually get older and unhealthier. That’s the way the thing works. Once you say that the insurance companies have to cover all of the sick people and all of the old people, the rates climb. More and more young people and healthy people say, why should we participate, we can just get it later when we get sick. So they leave the market, the rates go up further, more people leave the market, and the whole system crashes and burns, becomes unsustainable.
When Justice Kennedy pressed him on the consequences of his argument, even Mr. Farr did not seem to like the choice he was advocating:
JUSTICE KENNEDY: So do you want us to write an opinion saying we have concluded that there is an insignificant risk of a substantial adverse effect on the insurance companies, that’s our economic conclusion, and therefore not severable? That’s what you want me to say?
MR. FARR: It doesn’t sound right the way you say it, Justice Kennedy.
Mr. Farr concluded by appealing to Congress’ role, once again:
[T]he position I’m advocating would simply have those — those pleas go to Congress, not in court.
My approach would say if you take the heart out of the statute, the statute’s gone. That enables Congress to — to do what it wants in — in the usual fashion. And it doesn’t inject us into the process of saying, “this is good, this is bad, this is good, this is bad.”
It seems to me it reduces our options the most and increases Congress’s the most.
On rebuttal, Mr. Clement summarized the decision before the Court:
The choice is to give Congress the task of fixing this statute, the residuum of this statute after some of it is struck down, or giving them the task of simply fixing the problem on a clean slate. I don’t think that is a close choice. If the individual mandate is unconstitutional, the rest of the Act should fall.