Health Care At Supreme Court, Day 3: Insurance Mandate Imperiled
Early reports from the U.S. Supreme Court's third day of hearings on the new federal health care reform law suggest its centerpiece, the requirement that all individuals have insurance or pay a tax penalty, is in trouble. But whether removing it would 'kill' the law was not clear.
The day opened with a discussion of so-called 'severability'--or a theoretical discussion by the justices of what parts of the law could be struck without undoing Congress's legislative intent. It was a discussion that allowed the justices' more ideological inclinations to be seen, and that is where it appears that the individual mandate is in trouble. ScotusBlog's quick report after these arguments suggest that conservatives are holding sway--and want to strike the mandate:
"The Court is really struggling with severability. Generally speaking, the more conservative the member the more likely they were to believe that more would have to be invalidated. Justice Scalia would strike down the entire Act. Most likely would be guarantee issue, community rating and some other pieces essential to keeping insurance prices low. Tea leaves suggested that Justice Kennedy would vote to invalidate the mandate but nothing super-clear."
Another summary, from a live blog at Bloomberg, suggests that the liberal-leaning justices were retreating from the mandate and seeking to defend what remained in the law as worthwhile. The most salient quote was from Justice Ruth Bader Ginsburg, who apparently said If the justices have to choose between “a wrecking operation and a salvage job, a more conservative approach would be a salvage job.”
The big question that followed was whether the rest of the law could function if its heart--the mandate-were removed. The government's attorney said it would not, because removing the mandate would undercut the available funds to expand health care coverage and better-manage costs. The lawyer for the 26 states that oppose the law said the whole reform should be thrown out. He also noted that the insurance industry's lawyers have said that if the mandate falls, they don't want to be required to cover people with pre-existing conditions and to have the costs of those policies regulated. But an outside attorney hired by the Court to look at this issue said there were many things in Affordable Care Act that would benefit health care consumers, mandate or not.
These views left the Court "struggling," using ScotusBlog's term. However, it is important to realize that a severability discussion is a strange judicial exercise where the Court tries to guess what Congress would have wanted in a law if it could not keep everything it had adopted. Severability is supposed to be an exercise in judicial restraint--so the discussion often goes to worse-case scenarios, prompting a lot of guesses about the Court's true inclinations.
Indeed, perhaps the most optimistic reading of the hearing was from another longtime court watcher, ScotusBlog's Lyle Deniston, who said the justices' inability to figure out what to cut and what to keep in a 2,700-page law probably meant they would leave most of it intact. "The Supreme Court spent 91 minutes Wednesday operating on the assumption that it would strike down the key feature of the new health care law, but may have convinced itself in the end not to do that because of just how hard it would be to decide what to do after that," he wrote.
In the afternoon, the Court began hearing arguments on whether Congress can force states to expand their Medicaid programs to accommodate the low-income uninsured. The opponents say that Congress's threats to withhold federal dollars if they do not do that is unduly coercive. The live blog reports from that session suggest the liberal justices slammed the law's challengers--with vehemence approaching the conservative justice's criticisms of the individual mandate.
Justice Elena Kagan cut off the attorney representing the 26 states, saying, "Why is a big gift from the federal government a matter of coercion? It’s just a boatload of federal money. It doesn’t sound coercive to me, let me tell you.”