Some of the Supreme Court appear skeptical of the claim that, if they strike down the individual mandate provision, they must strike down the entirety of the Act. Early accounts of the justices from the courtroom appeared to be favoring severability but new reports have cast doubt – yet another example how artificial the denial of cameras and live coverage has become. As the argument unfolded, conservative justices appear to suggest that it really is an all-or-nothing proposition.
This was always been viewed a weak argument because of the preference of federal courts to minimize the degree to which they strike down federal laws. However, the Administration blundered in removing the common severability clause of the legislation — creating a game of chicken with the courts where a ruling against the individual mandate would torch the entire historic act. The hope for a “sticker shock” deterrent did not work when the trial court struck down the Act. It still seems a significant departure from past cases to strike down the entire act, including provisions not dependent on the individual mandate.
This matter is made more difficult by the confused and conflicted statements of both the Administration and the Justice Department. Initially, the Justice Department insisted that the individual mandate was essential to the Act, which would be fatally harmed if it were ruled unconstitutional. Then, as with other issues, the Justice Department changed its position on severability.
The argument did indicate that Scalia appears inclined to strike down the individual mandate in saying “One way or another, Congress will have to revisit it in toto.” Scalia added “Once you cut the guts out of it, who knows which parts were desired and which ones weren’t?” Even Justice Elena Kagan (who many felt should have recused herself from the case due to her prior positions as Obama’s Solicitor General) noted “The question is, is half a loaf better than no loaf?”
Even more worrisome for the Justice Department is the statement of Justice Anthony Kennedy who described it as an “extreme proposition” to allow the various insurance regulations to stand after the mandate was struck down.
The gamble of the Administration and Democratic leadership in pulling a severability clause now may have backfired in a major way.
Today, the justices are also considering whether the law’s proposed Medicaid expansion violates the Constitution as a form of conditional legislation. Congress routinely takes in more taxes than it needs so that it can return the money to states with conditions or “strings attached.” The question is whether this is a condition “so coercive as to pass the point at which pressure turns into compulsion.” However, the Court has routinely denied such claims while reserving the possibility that a condition might someday be so coercive as to be unconstitutional. The Court in South Dakota v. Dole did include a strong message that the Court would not dismiss such a claim categorically. It remains a viable claim but one without a successful track record.