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.
The Wednesday morning argument offered the Court three mutually exclusive options: strike down all of the Affordable Care Act along with the mandate (the challengers’ position), strike down only two core changes in the way the health insurance system works (the government position), and strike down nothing but the mandate (the position of a Court-appointed lawyer). Not one seemed to be especially appealing to members of the Court, and each of the three lawyers who came to the lectern faced tough and often skeptical questioning, from across the bench.
Congress’s capacity to react in a sensible way also came into some question, particularly from Justice Scalia and, in a way, from Justice Anthony M. Kennedy, both of whom seemed to harbor doubts that the lawmakers would be up to the task of working out a new health care law if this one failed, either totally or partially. Scalia noted the problems in the filibuster-prone Senate. Kennedy wondered whether expecting Congress to perform was a reference to “the real Congress or the hypothetical Congress.”SCOTUS BLOG
Tony,
Then that is a consistent way for a “progressive liberal” to think. You are a self described left winger opposed to right wing legislation. It makes sense to me.
A progressive liberal would be much more comfortable with all Americans being covered under Medicare, which is more of a left wing proposal.
Verilli has been anything but a strong advocate.
I don’t think women’s advocate groups, as you call them, are generally considered right wing. But if such groups are supporting the individual mandate, they are supporting a right wing policy, in my humble opinion.
As you know, Mussolini is considered to be an extreme right wing political figure. His policies, which were termed fascist, centered around using legislation involving private businesses as partners with the government in enacting political policies.
@Neil Davis: I am a progressive liberal, but I still think it is unconstitutional for the federal government to demand I buy health insurance from a for-profit corporation or pay a penalty that is a percentage of my income.
The only reason that is occurring is because the Obamacare legislation was proposed and passed by the Democratic Party. The groups you mention are, perhaps unconsciously, playing their proper party affiliated roles.
But is it not a classical right wing idea to coerce individuals to act in such a way that it benefits, profits, and is in the interest of, big business? That is what Obamacare does.
Other parts of the legislation could be considered left wing, such as the new rules being imposed upon the insurance companies concerning what they are required to cover in the plans they offer. But of course, any additional costs incurred by the companies due to these rules will be passed on to the consumer in higher premiums. But I believe the main statute, which is the individual mandate, is right wing in nature.
Neil, Do you think women’s advocate groups are part of the right wing?
The loudest voices at Tuesday morning’s demonstrations outside the Supreme Court came from those defending women’s rights.
For the second day, hundreds of protestors convened at the Supreme Court building as the highest court in the nation continued to hear arguments on the constitutionality of the Affordable Care Act. But unlike earlier protests, the issue of women’s rights became the focal point of these demonstrations.
Planned Parenthood, NARAL Pro-Choice America, the National Organization for Women, and the National Latina Institute for Reproductive Health each brought scores of supporters from throughout the country to demonstrate in the nation’s capital, supplying them with T-shirts and signs and leading them in chants.
While marching, protestors carried signs that featured messages such as “We Love ObamaCare” and “Protect Women’s Health.” One toddler, who was joining his mother in the demonstration, touted a small sign that read, “Every Mommy Deserves Health Care.”
In between chants, demonstrators indicated they were drawn to the rally to voice their support for the benefits women received as part of the health care reform law.
“We’re here to protect health care for women,” Langan Denhard, a sophomore at the University of Maryland–College Park, told Campus Progress. “The Affordable Care Act guarantees access to mammograms, cancer screenings, and other vital health procedures.”
Indeed, the law eliminates co-payments for the aforementioned preventive services and ensures that those and other basic health services are covered.
“ObamaCare also protects women from insurance discrimination,” noted Veronica Aveis, the Manager of Political Affairs at Planned Parenthood–New York City. “If we don’t keep it, it will be a major setback for women everywhere.”
Aveis, who traveled to the rally from her job in New York, is referring to the fact that before the Affordable Care Act was implemented, it was legal in most states to charge higher premiums to people because of their gender.
But not all of the demonstrators are happy with the changes. Tea Party groups organized a simultaneous counter-protest outside the Supreme Court on Tuesday morning, though with far fewer supporters. Those who did show up were steadfast in their opposition to all of healthcare reform, even when pressed with the fact that the law makes it significantly easier for women to access crucial preventive health services.
“Nobody had a problem accessing those services before,” said Sylvia Smith, a Tea Party coordinator from Littleton, New Hampshire. “We need to keep fighting this socialism.”
Unfortunately, the comments from Smith and others protesting against the Affordable Care Act reflect a troubling disconnect from reality. Until the legislation was passed, many low-income women didn’t have access to preventative screenings for the top killers of women because they couldn’t afford it. But over the past two years, 20 million women have been able to receive preventive care with no co-pay through the law.
Despite the Tea Party opposition, women’s rights advocates dominated the morning protests with overwhelming numbers. Many of those who demonstrated said they plan to return on Wednesday, when the Supreme Court concludes its hearings on the Affordable Care Act. The court is expected to deliver its ruling in late June.
Graham White is a journalism intern for Campus Progress.
Increases in health care costs have nothing to do with the Heath care law. The high price of health care
and the related cost of Insurace is caused almost exclusively by the insistance of corporations who control the bulk of health care and insurance needing to make and being allowed to make enormous profits. Drug companies gouge American consumers, who have more than likely borne the lion’s share of the development of those drugs via their tax dollars, while selling the same drugs to Canadian and other patients in Europe more reasonable prices. Insurance companies make the money charging high premiums and avoiding paying for care. We will never solve this problem unless we are willing to clearly define it.
The President’s game of chicken on severabilty is just one of the huge mistakes he made on health care.
Neil Davis, The protestors in front of the Supreme Court would certainly disagree with you on that. Planned parenthood and the progressive wing of the democratic party is protesting in favor of it while the tea party is out there against it yelling about Sandra Fluke and birth control.
I think from from a perspective based on the classical right/left paradigm, a striking down of Obamacare by the Supreme Court would be considered a left wing decision. Legally requiring citizens to purchase a service from a select group of large corporations is legislation born of right wing ideology.
I would argue that the vast majority of Obama’s proposed and implemented policies could be characterized as right wing. Eric Holder’s speech a couple of weeks ago, in which he attempted to convince law students that a constitutional view of “due process” does not include notifying the accused of the charges, a jury trial, confronting the accuser, representation by legal counsel, or judicial review or oversight, is perhaps the most right winged speech ever delivered by a U.S. Attorney General.
I have been keeping up with this some and it seems as though there might not be a happy medium in all this. I am interested to see how it turns out, hopefully for the good of everyone one way or the other.
I do not think the Supremes are compelled to solve any problem they create; they can declare the mandate (and anything else they see fit) as “unconstitutional” and therefore unenforceable and kick the rest back to the Congress to fix as they see fit. Let them fight it out.
As far as I can tell, there is no rule anywhere that says they have to provide a viable alternative solution, they can just say, “Here are the things you have done that you cannot do.”
Having said that, I think it is clear any provisions that take effect prior to the 2014 mandate need not be touched, the mandate is obviously not a necessary component if they are already in effect and it is not.
I always think of W.C. Fields pulling on a string hanging out of his suit jacket. By the time he finished he only had a collar left.
The federal judiciary has gone right-wing equal to the level in ~1937.
“Advance to the rear! …”
I think Obama beats Mitt Romney. Romney is not much different from Obama if you actually look at the policies they’ve implemented while in office, regardless of his campaign rhetoric.
I like Question Time, too, but there has been no better show in the country this week than the hearings at the Court. The justices of all philosophical persuasions demonstrated why they’re qualified to sit on the highest bench. (I include Thomas even though he didn’t speak.) They should build on this and allow cameras in the courtroom. I don’t think the arguments would have been different in any material respect had cameras been there. Plus, it would have shown the country that there are at least nine people in the government who have brains and aren’t afraid to use them. The ideological and political extremists will never be satisfied with any ruling, but I think the American people now have a much better understanding of how diligent the Court works, how intimidating it must be to stand before all nine of them in the well and how an argument can actually have two persuasive sides.
I think also at this time…it’s a dog and pony show….designed to embarrass Obama who needs no help….. As I see it now….the elections his to loose….m
Striking down the individual mandate while keeping the rest of the law intact will actually result in even more Americans becoming uninsured. This is because the insurance providers are seeing costs increase dramatically due mainly to the Obamacare requirement that they not deny coverage to those with pre-existing conditions, and other regulations being imposed. As the cost of the premiums rise, even less people will be entering the market as the mandate to participate in it no longer exists, and more will be leaving.
It should all stand or fail….. How else would you prevent abuse of a power that the president does not have…. Line item vetos…… To continue to do this gives too much power to the executive and Sct…… My three cents worth…. Still don’t think it’s ripe to hear…..
I am going to bring a dog claim against federal employees, members of Congress and the federal judiciary on an equal protection of law theory. They all have to pay taxes and if they dont they lose their jobs and if they lose their jobs they lose their Godsgift to the less than one percenters health insurance coverage.
The Justices thought that if they had extended hearings that they would show off to the country. A better show on television is Question Time in the British Parliament. They speak the Kings English, they have a topic to discuss and they are short.