Divided on Division? Supreme Court Justices Seem Split on Health Care’s Severability Claim

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.

88 thoughts on “Divided on Division? Supreme Court Justices Seem Split on Health Care’s Severability Claim”

  1. Surprise, surprise…

    Never fear, the mandate will fare far better than the fish it puts in a barrel. The justices have had their fun, but as all will see in June, they know damn well which side of the bread has butter on it.

  2. It remains my position that the statute, including the individual mandate, is a constitutional exercise of legislative authority. Although I have been unable to hear all of the oral arguments in their entirety, the bits and pieces I have heard are disturbing, but not for any reason relating to constitutional law. I acknowledge that I have never argued before the Supreme Court, but I have argued before state and federal appellate courts, and have generally walked away impressed with the quality of the analysis and the thoughtfulness of the questions posed by the panels. The oral argument excerpts I have heard this week, however, are more suggestive of partisan debate on the floor of the House than they are of judicial proceedings. Are we simply witnessing the expected consequences of an intentional politicization of the Court? Perhaps so. And if that is the case, the Court is doing further damage to its already tattered reputation as the guardian of constitutional integrity, regardless of the substance of the opinion it eventually issues.

  3. Here is an excellant summary of what the Democrats did wrong prior to the indifidual mandate ever coming to the Supreme Joke Court.

    I would only add that Democrats are just as beholden to corporate America as Republicans. That is, actual health care is not always what they are concerned about either.

  4. by getting people to reduce their population to identically zero

    I thought we had already solved that problem by global warming, pollution, and profit-driven exhaustion of critical resources, caused, no doubt, by sun spots on mars.

  5. The most effective way to reduce health care costs may be making health care for humans a capital crime, subject to summary execution of all humans who are in any way involved in providing health care to humans.

    If there actually is a Gaia Principle at work in the world, I have been unable to find any evidence that it is not vigorously at work in reducing the cost of human health care to identically zero, by getting people to reduce their population to identically zero through teaching humans to totally embrace the ultimate defeating principle of escalating reciprocal retaliation.

    Surely the non-existence of humanity, duly and diligently achieved via the manifestly evident human proclivity for implementing mutually, assuredly, totally annihilating belief systems into variants of purportedly constitutional law, when fully completed, will reduce human health care costs to whatever level people who hate humanity because they are unable to not hate themselves so earnestly seek, doing so by means of having first totally eradicated the whole of humanity?

    More hatred, compounded by the hatred generated by revenge masquerading as justice, makes only more hatred and less actual justice.

    Wherefore art Thou, O Hatred, Omnipotent Ruler of Adversarial Law?

  6. Will our current crop of corporate owned politicians, media, and judicial system:

    A) Work on expanding the ACA to help citizens receive more health care?
    B) Work on expanding the mandate to help corporations gouge out more of the citizens money?

    If you choose A, I have a fabulous deal for you
    If you choose B, you know why the Supreme Court will pass the mandate at the end of June after they soak as much theatrics out of it as they can.

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