U.S. Supreme Court

Are Five Justices Ready to Ditch the Whole Health Care Law? Clues Sought in Severability Debate


Justice Antonin Scalia offered differing views this morning on whether other provisions of the Obama administration’s health care law can stand if the U.S. Supreme Court strikes down the insurance mandate.

At one point, Scalia said, it “just couldn’t be right” that the entire law would have to fall if one provision were unconstitutional, SCOTUSblog reports. At another point, he voiced a different view, one noted by SCOTUSblog, the New York Times and the Los Angeles Times.

“My approach would be to say that if you take the heart out of this statute,” Scalia said, “the statute’s gone.”

SCOTUSblog and the Los Angeles Times offered two different takes on the arguments.

“Picking up where they left off Tuesday,” the Los Angeles Times says, “the conservatives said they thought a decision striking down the law’s controversial individual mandate to purchase health insurance means the whole statute should fall with it.” The story said Justice Anthony M. Kennedy was among the group who voiced misgivings about allowing the law’s insurance regulations to stand if the mandate is unconstitutional.

SCOTUSblog founder Tom Goldstein says Scalia appears likely to strike down the entire law. “Generally speaking, the more conservative the member the more likely they were to believe that more would have to be invalidated,” he wrote. “Tea leaves suggested that Justice Kennedy would vote to invalidate the mandate but nothing super-clear.”

But SCOTUSblog’s Lyle Denniston sees indications that the difficult severability issue could be a positive for the government. “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,” Denniston wrote.

“A common reaction, across the bench, was that the justices themselves did not want the onerous task of going through the remainder of the entire 2,700 pages of the law and deciding what to keep and what to throw out, and most seemed to think that should be left to Congress,” Denniston says. “They could not come together, however, on just what task they would send across the street for the lawmakers to perform. The net effect may well have shored up support for the individual insurance mandate itself.”

Prior coverage:

ABAJournal.com: “In Health Law ‘Doubleheader,’ Supreme Court to Weigh Severability, Medicaid Expansion”

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