The Supreme Court heard arguments on the severability of the individual mandate from the Affordable Care Act today, and were introduced to three competing options, should they find the mandate unconstitutional. They could sever only the mandate and allow the rest of the law to stand; sever the mandate along with insurance regulations like guaranteed issue and community rating, to prevent what the government argues would be an insurance death spiral; or throw out the whole law, which did not include a standard severability clause.
There appeared to be a divergence of viewpoints on this:
“My approach would be, if you take the heart out of the statute, the statute is gone,” Justice Antonin Scalia declared.
From the other side, Justice Elena Kagan suggested that often “half a loaf is better than no loaf,” while some of her colleagues agreed that the court should not move too drastically.
“It’s a question between a wrecking operation and a salvage job,” Justice Ruth Bader Ginsburg said, “and it seems to me the more conservative option is the salvage job.” […]
Twenty-six different provisions took effect in 2010, the law’s first year, and 17 went on the books last year, according to the Kaiser Family Foundation. Nine new provisions are taking effect this year.
“(There is) all kinds of stuff in there,” Justice Stephen Breyer said, adding that “they can stand on their own.”
This doesn’t tell us much we didn’t already know. The more liberal justices would sever the mandate, while Scalia, at least, would not. But Anthony Kennedy, the swing vote, appeared to agree with the government’s argument that you could not separate just the mandate without also throwing out the insurance regulations.
Justice Anthony Kennedy, considered the swing vote on the court, voiced concern about the cost risks to insurance companies if the mandate – which would bring millions of healthy young people into the healthcare system and spread out costs – is invalidated alone.
If the arguments are any guide, then, the choice would be, in the event of the mandate being found unconstitutional, between tossing the regulations with the mandate, or tossing the whole law. The mandate won’t come out alone, if form holds and everyone to the right of Kennedy agrees. But Nina Totenberg, the venerable NPR Supreme Court reporter, said that the whole law could very well be tossed.
The afternoon session concerns the Constitutionality of the Medicaid expansion.