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Justices Ask: Can Health Law Stand If Mandate Fails?

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The historic legal arguments on the Obama health care overhaul came to a close at the U.S. Supreme Court on Wednesday, with key justices suggesting the court may be prepared to strike down not just the individual mandate but the whole law.

The major arguments of the day were premised on a supposition. Suppose, asked the court, we do strike down the individual mandate — what other parts of the law, if any, should be allowed to stand?

The government contends that most of the law can remain intact, but not the two most popular parts — the provision barring discrimination based on previous medical conditions and the provision making insurance rates more uniform.

In contrast, the challengers, represented by lawyer Paul Clement, told the justices that the whole law should fall.

Justice Ruth Bader Ginsburg noted that the 2,700-page law contains myriad provisions that are unquestionably "OK" and have not been challenged.

"Why should we say it's a choice between a wrecking operation, which is what you are requesting, or a salvage job?" she asked. "The more conservative approach would be salvage rather than throwing out everything."

Several justices pointed out that the court generally tries to keep as much of a law intact as possible, on the theory that, as Justice Elena Kagan put it, "half a loaf is better than no loaf" at all. But Clement argued that without the mandate and the two provisions that make insurance rates uniform and nondiscriminatory, the law would be a "hollowed-out shell."

Could The Law Be 'Fixed'?

Justice Anthony Kennedy, a key swing vote, pressed Clement for a principle to use as a guide.

Clement replied that the court should ask whether a statute can operate the way Congress intended without the invalidated provision.

Justice Sonia Sotomayor responded, "No statute can do that, because once we chop off a piece of it, by definition, it's not the statute Congress passed." Shouldn't it be up to Congress, not the court, she asked, to "fix" the law if one or more provisions are struck down?

Chief Justice John Roberts noted that deals are made for votes all the time in major bills like this, so that it would be nearly impossible for the court to unwind what the intent of Congress was.

When Clement seemed to founder for a moment on the question of how to determine intent, Justice Antonin Scalia moved in to help, suggesting that Congress can't seem to do much of anything anyway. Wouldn't "legislative inertia" prevent Congress from being able to fix the law if some part of it is struck down, he asked. Clement quickly agreed that would be the case.

Justice Stephen Breyer, holding up a thick copy of the law, pointed to the many provisions that have nothing to do with the individual mandate — provisions to encourage doctors to move to underserved areas, provisions on drug pricing, and even a provision on breast-feeding. These parts of the law, he said, could stand on their own.

Those are "peripheral" provisions, Clement replied, and the court should strike down the whole law.

Justice Samuel Alito asked Clement for his "fallback position." The answer was still: Strike down the whole law.

Another Approach

Making a contrary argument was Edwin Kneedler, the deputy solicitor general, who said that the mandate only implicates two other provisions of the comprehensive law: the provision barring discrimination based on previous medical conditions and the provision making health care rates more uniform.

Scalia said as far as he is concerned, that's "the guts" of the law, and if the court cuts the guts, the whole statute should die.

"There is no way that this court's decision is not going to distort the congressional process," Scalia said. "Whether we strike it all down or leave some of it in place, the congressional process will never be the same." He said it would be better to force Congress to reconsider the issue "in toto."

Kneedler, however, urged the court to follow the conservative course of judicial restraint, leaving Congress to fix the law if the mandate is struck down. But Kennedy countered that the effect would be "the opposite" of restraint.

"We would be exercising the judicial power ... to impose a risk on insurance companies that Congress had never intended," Kennedy said. "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 striking the whole."

Kneedler pointed to the many provisions of the law that have already gone into effect as evidence that Congress intended pieces to remain intact even if the mandate and the two connected provisions were struck down. For instance, he noted that 2.5 million young people under age 26 now have coverage under the law.

But Scalia responded that preserving the law without the mandate would "bankrupt the insurance companies, if not the states, unless [the] minimum coverage provision [the individual mandate] comes into effect."

By the end of the argument, it seemed pretty clear that if there are five votes to strike down the individual mandate, there likely are five votes to strike down the entire Obama health care overhaul. Until Wednesday, that had seemed a remote possibility. No appeals court had reached that conclusion. But the current Supreme Court seems to be on the verge of proving itself to be dramatically more conservative than any Supreme Court since the 1930s on matters that pit its power against the power of Congress to regulate economic matters.

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