by Philip Klein, Senior Editorial Writer, The Washington Examiner
Justices on the U.S. Supreme Court this morning considered what to do with the rest of President Obama’s national health care law if its individual health insurance mandate is struck down. Though it was difficult to get a clear read on their thinking as they asked tough questions of all sides, the Court seemed open to the possibility of overturning the entire law.
Paul Clement, arguing for the 26 states challenging the law along with the National Federation of Independent Business, started off the arguments by suggesting the Court look at whether Congress would have passed the law without the individual mandate.
The more liberal justices argued that there were plenty of elements of the law that had nothing to do with the mandate.
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.
At first, it seemed that even Justice Antonin Scalia was skeptical. He pushed back at Clement, arguing that Congress would have never been able to pass the health care law without the “cornhusker kickback,” either. Scalia argued, you can’t say if the Supreme Court struck down that provision, that the whole law should go.
Yet later in the arguments, Scalia echoed Clement, saying that “his approach” was that if the heart of the law gets struck down, the whole law should go.
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 interestingly, Justice Anthony Kennedy argued this could be seen as more “extreme” than simply striking down the whole law.
A court-appointed attorney, Bartow Farr, made the case for preserving the rest of the law if the mandate is found unconstitutional. But he ran into tough questioning from the liberal justices, who pointed to Congressional findings warning about a possible “death spiral” for insurers if they were forced to cover anybody who applied for insurance without healthy people having to be brought into the market.
Have to run up to the arguments on the constitutionality of the Medicaid expansion now, but will have more later.
As posted on The Washington Examiner’s Beltway Confidential blog.
