Today was the final day of oral arguments before the Supreme Court on ObamaCare. This morning the Justices heard oral arguments on the issue of severability – whether all of ObamaCare must be struck down if the individual mandate is found unconstitutional.
The court heard several different arguments on this issue. The States, represented by the former Bush Administration Solicitor General, Paul Clement, argued that “[i]f the individual mandate is unconstitutional, then the rest of the Act cannot stand.” This is the position the ACLJ took in our amicus brief. The federal government argued that if the individual mandate is struck, the requirement that insurers accept all customers must also fall, but that the other provisions of the law must remain. Finally, the Court appointed an amicus curie to argue the position taken by the Eleventh Circuit Court of Appeals that the rest of the law remain intact if the individual mandate is struck down.
Justice Kagan agreed with the States and the federal government that there is “a textual basis for saying that the guaranteed-issue and the community ratings provisions are tied to the mandate.” But said she was “unable to find one” for other provisions of ObamaCare. She further stated:
And the question is always, does Congress want half a loaf. Is half a loaf better than no loaf? And on something like the exchanges it seems to me a perfect example where half a loaf is better than no loaf. The exchanges will do something. They won't do everything that Congress envisioned.
Justice Ginsburg said:
[T]here are so many things in this Act that are unquestionably okay. . . . I mean it's a question of whether we say everything you do is no good, now start from scratch, or to say, yes, there are many things in here that have nothing to do frankly with affordable healthcare and there are some that we think it's better to let Congress to decide whether it wants them in or out.
She told Clement that 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.”
Clement responded that “you can't possibly think that Congress would have passed that hollow shell without the heart of the Act.”
Chief Justice Roberts noted that Congress more than likely “would have passed parts of the hollow shell,” including “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 the middle of the 2700 pages than to do it separately.”
Justice Kennedy, cut past the hypotheticals and asked “what is the test?” “Is it whether as a rational matter separate parts could still function, or does it focus on the intent of the Congress?”
Clement suggested that the answer “Is whether the statute can operate in the manner that Congress -- that Congress intended.” Justice Sotomayor retorted, “No statue can do that, because once we chop off a piece of it, by definition, it's not the statute Congress passed.”
Justice Breyer listed off several obscure features of the bill and asked:
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?
Interestingly, Justice Breyer admitted, “I haven't read every word of that [2,700 page law], I promise.”
Justice Alito asked:
What would your fallback position be if -- if we don't accept the proposition that if the mandate is declared unconstitutional, the rest of the Act, every single provision, has to fall? Other -- proposed other dispositions have been proposed. There's the Solicitor General's disposition, the recommended disposition to strike down the guaranteed-issue and community rating provisions. One of the -- one amicus says strike down all of Title I, another one says strike down all of Title I and Title II.
Clement responded that the Court could look to each provision and ask is this provision inextricably tied to the individual mandate, but “the better answer might be to say, we've struck the heart of this Act, let's just give Congress a clean slate.”
Chief Justice Roberts noted the manner in which ObamaCare was past with various Members of Congress voting for the bill only because it contained a particular, maybe even obscure provision, and others voting for it for other reasons. He suggested, “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.”
The federal government began its argument by suggesting that “the Court should not even consider” whether to strike many of the provisions because it should be left up to the insurance companies or others to bring their own suits.
This was immediately met with resistance from Chief Justice Roberts and Justices Scalia, Breyer, and Ginsburg. Justice Ginsburg seemed to suggest an all or nothing approach as opposed to going through each provision one by one. She said the question before the Court was whether “we're going to wreck the whole thing, or should the Court leave it to Congress?”
Justice Scalia had the laugh line of the morning in response to the federal government’s insistence that the Court look at each provision of the law individually in deciding whether to strike it. He interrupted:
“[W]hat 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 -- to give this function to our law clerks?
Is this not totally unrealistic? That we are going to go through this enormous bill item by item and decide each one?
However, he succinctly stated, “The whole issue here is whether these related provisions have been legitimately enacted, or whether they are so closely allied to one that has been held to be unconstitutional that they also have not been legitimately enacted.”
Justice Scalia pointedly asked the federal government:
[D]on'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.
One way or another, Congress is going to have to reconsider this, and why isn't it better to have them reconsider it -- what -- what should I say -- in to, rather than having some things already in the law which you have to eliminate before you can move on to consider everything on balance?
Justice Kennedy echoed, “I just don’t accept the premise” that “it increases the judicial power if the judiciary strikes down other provision of the Act.” He continued:
I suggest to you it might be quite the opposite. We would be exercising the judicial power if one Act was -- one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended. 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.
Chief Justice Roberts repeatedly asked the federal government, “Where is this line?” – asking how the Court could possibly determine which of the many provisions of the law were linked to the mandate and which were not.
Justice Alito asked what would happen to the insurance companies if the individual mandate were struck down because half of the funding for expanded coverage came from the mandate and the other from Medicaid. Chief Justice Roberts added, “We've talked about the individual mandate, but does the government have a position on what should happen if the Medicaid expansion is struck down?”
Tellingly, Justice Kennedy reiterated the question of what should happen to the rest of the law “if the individual mandate is – is stricken,” adding, “Assume there is a significant possibility of that.”
When the federal government responded that it isn’t the Court’s job to make those kinds of judgment calls, Justice Kennedy responded, “isn't that the point then, why we should just assume that it is not severable? . . . [I]f we lack the competence to even assess whether there is a risk, then isn't this an awesome exercise of judicial power?”
Justice Scalia asked, “When have we ever really struck down what was the main purpose of the Act, and left the rest in effect? . . . Can you take out the heart of the Act and leave everything else in place?” As he continued to push this point, the government finally admitted, “There is no example.”
Justice Breyer indicated that “destroying the heart of the bill does not blow up the entire bill; it blows up the heart of the bill,” not the portions of the law that have “nothing to do with the validity of these other provisions.”
Chief Justice Roberts noted that Congress’s passage of the act as a whole “was based on the assumption that the mandate was -- was constitutional. And if -- that certainly doesn't stop us from reaching our own determination on that.” Justice Scalia added that “many of the people in Congress might not have voted for those [other] provisions if -- if the central part of this statute was not adopted.”
Chief Justice Roberts continued:
[T]he problem is, straight from the title we have two complimentary purposes, patient protection and affordable care. And you can't look at something and say this promotes affordable care, therefore, it's consistent with Congress's intent. Because Congress had a balanced intent. You can't look at another provision and say this promotes patient protection without asking if it's affordable.
So, it seems to me what is going to promote Congress's purpose, that's just an inquiry that you can't carry out.
Justice Scalia gave the most insight into his opinion of the case:
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.”
Interestingly, Justice Kagan followed this up stating:
So if you assume that, that all the minimum coverage is a tool to make those provisions work, then I guess I would refocus Justice Scalia's question and say, if we know that something is just a tool to make other provisions work, shouldn't that be the case in which those other provisions are severed along with the tool?
In his rebuttal, Clement argued that the individual mandate “isn't just a tool; it's the principal tool, Congress identified it as an essential tool. It's not just a tool to make it work. It's a tool to pay for it, to make it affordable.” He concluded, “I don't think that is a close choice. If the individual mandate is unconstitutional, the rest of the Act should fall.”