• Loss on health care might not doom Obama
• Health care activists refocus after court adjourns
• Transcript of Day 3
• Day 2: Justices air doubts about health care mandate
• Day 2: Demonstrations intensify as health care hearings roll on
• Day 2: Audio, video and transcript
• Day 1: High court unlikely to delay health care ruling
• Day 1: Health care protests start small, expected to grow
• Day 1: Audio, video and transcript
The U.S. Supreme Court on Wednesday weighed whether it would have to overturn President Obama’s entire health care law if the justices decided a key provision of those reforms was unconstitutional.
In the third and final day of historic oral arguments on health care, the justices considered what options they’d have if they struck down the individual mandate requiring most Americans to purchase health insurance.
Paul Clement, the lawyer representing 26 states led by Florida with the National Federation of Independent Business, argued that if the mandate were ruled unconstitutional, the court would have to throw out the whole law.
Provisions of the law are so interconnected, Clement argued, that once the court removed the mandate and its related provisions, it would be left with a “hollowed-out shell” that Congress never would have passed. Better to strike down the whole law and let Congress start with a “clean slate,” he said.
The Obama administration, represented by Deputy Solicitor General Edwin Kneedler, argued that only two provisions should be removed from the law if the mandate were struck down — the requirements that insurers cover people with pre-existing conditions and charge sicker enrollees the same as healthier customers.
Kneedler said that the mandate is essential to making those particular regulations work, but that the rest of the law could stand on its own.
A court-appointed attorney, Bartow Farr, made the case for preserving the law even if the mandate is found unconstitutional. The provision requiring insurers to cover those with pre-existing conditions may not function as originally intended, but it would still advance key goals of Congress, he said.
The Democratic-appointed justices immediately pounced on Clement’s argument that the whole law should be struck down, pointing out a number of the provisions in the law that were totally unrelated to the mandate — such as reauthorizing a health care program for American Indians and changes to benefits for black lung disease.
At first, Republican appointees seemed as if they, too, had reservations about striking down the whole law. But as arguments went on, their comments suggested they could be open to it.
“My approach would say if you take the heart out of the statute, the statute’s gone,” Justice Antonin Scalia said.
He also complained about the logistics of going through the 2,700-page health care law to decide what stays and what goes.
“Is this not totally unrealistic?” he asked. “That we’re going to go through this enormous bill item by item and decide each one?”
Justice Anthony Kennedy, a Republican appointee considered a swing vote on the issue, said striking down the mandate and leaving it to Congress and the insurance industry to deal with any economic consequences may be a “more extreme exercise of judicial power” than striking down the whole law.
In the afternoon, justices heard another hour of arguments on whether the law’s expansion of Medicaid was an unconstitutional act of coercion by the federal government over the states.
The court’s decision on the case is expected by the end of June.
