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. “In 1799, South Carolina’s highest court held: “So cautiously does the law watch over all contracts, that it will not permit any to be binding but such as are made by persons perfectly free, and at full liberty to make or refuse such contracts. . . . Contracts to be binding must not be made under any restraint or fear of their persons, otherwise they are void.” Throughout the life of this nation it has been understood that for a contract to be valid, the parties to it must mutually assent to its terms — without duress.

    In addition to duress, contracts are voidable for reasons of fraud upon, or the mistake or incapacity of, a party to the contract. This underscores the centrality of the concept of meaningful consent in contract law. To be meaningful, consent must be informed and must not be coerced. Under Obamacare, the government will compel individuals to enter into contractual relations with insurance companies under threat of penalty”


  2. Justice Roberts’ Supreme Wrecking Crew
    By: Scarecrow Thursday March 29, 2012 7:52 am

    “The conservative movement has become not just intellectually bankrupt and incoherent; it’s a moral abomination, and unless and until they are understood to be a menace to a democratic republic — and voters respond accordingly — the nation will continue to resemble a wrecking yard run by juvenile delinquents.”


  3. Swarthmore,
    You are right that single payer wouldn’t pass through this Congress. The only way it will ever have a chance is to get there incrementally. Obamacare would have been just a start to get us to a place where people’s health actually matter more than corporations.

  4. The republicans voted today to end medicare as we know. They have NO plans to extend it to all.

  5. Boehner: Ryan budget ‘vision’ of what GOP would do if in control
    By Pete Kasperowicz – 03/29/12 01:50 PM ET

    House Speaker John Boehner (R-Ohio) said Thursday afternoon that the budget proposal put forward by House Budget Committee Chairman Paul Ryan (R-Wis.) is a “real vision” of how Republicans would govern if they had more control of Washington.

    “So I applaud my colleagues,” he said of those who worked on the Ryan budget, “for the tough decisions they’ve made, to try to do the right thing for the country, to lay out a real vision of what we were to do if we get more control here in this town. It’s still a Democrat-run town.”

  6. Cue The Ads: GOP Votes To Scrap Medicare In Election Year
    Sahil Kapur March 29, 2012, 4:44 PM 7 0

    Recklessly brave or politically suicidal?

    For the second year in a row, Republicans voted Thursday to effectively dismantle Medicare — this time, just over seven months before a presidential election. And Democrats are salivating at the political opportunity, eager to hang the vote around the neck of the party’s presidential nominee and its candidates in tough congressional races.

    “A year ago, nobody was talking about Democrats having a shot at the House. Now we’re talking about it,” a Democratic leadership aide told TPM after the vote.

    The blueprint by House Budget Chairman Paul Ryan is similar to his controversial Medicare plan last year, in that it ends the health insurance guarantee for seniors and replaces the program with a subsidized insurance-exchange system. Unlike last year’s plan, seniors can buy into traditional Medicare as a sort-of public option, and the vouchers it provides are more generous.

    Conservative Republicans see the vote — a party-line 228-191 that didn’t win a single Democrat — as an opportunity to lay down their marker for the sort of sweeping reforms they hope to enact if they win the presidency. Ryan has urged his party’s presidential candidates to cast the election not as a referendum on President Obama but a choice between two competing visions for the nation’s future.

    “Today we will pass our budget that proposes real, honest solutions to create a stronger economy and a more certain future for our country,” House Majority Leader Eric Cantor said on the floor. “Our budget takes bold steps that will get the fiscal house in order and will manage down the debt and deficit.”

    As it turns out, Democrats would love to fight the battle on those terms. They’re expected to make Medicare a focal point of their election message, portraying Republicans as seeking to “break the Medicare guarantee” in order to fund large tax cuts for the rich.

    “Our main focus will be on Medicare,” the Democratic aide said. “There’s clear evidence that seniors are very worried about what Republicans are doing with Medicare. And we want people to know that this is who they are in a nutshell. There’s no wiggle room for them.”

    Mitt Romney, the likely Republicans presidential nominee, has indicated support for Ryan’s budget — his spokesperson didn’t immediately respond to a request for comment after the vote. And the White House offered a preview of the contrast it hopes to draw.

    “House Republicans today banded together to shower millionaires and billionaires with a massive tax cut,” spokesman Jay Carney said in a statement, “paid for by ending Medicare as we know it and making extremely deep cuts to critical programs needed to create jobs and strengthen the middle class.”


  7. All this amounts to is an exercise in getting the sheeple acclamated to having their meager resources raided on a regular basis and at will by private corporations. It’s a little extra jab that our taxes go to enforcing that form of economic terrorism.

  8. @Swarthmore: I doubt that scenario would hold up in court (buy insurance when you get sick).

    It is routine in insurance to have a waiting period after insurance is bought before benefits kick in. I have seen, for example, a three month wait on life insurance and home appliance insurance. I recall a job at some point where my health insurance did not kick in until after my probationary period (90 days). Few people that are sick can wait three months, and although an insurance company may not be able to refuse to sell somebody because they have a pre-existing condition, that is NOT the same thing as having to pay for a diagnosis already made or a cancer already in progress. Coverage can be limited to health conditions that arise AFTER the probationary period.

    For example, a friend of mine has a serious arthritic problem with his knees, due to an accident as a teenager when he landed on them. He has been denied health insurance because of this pre-existing condition. In his own research on the topic, he thinks he will be able to get coverage under Obamacare in a few years, but the insurance company can still exclude coverage for his knees, it just cannot refuse to sell him any health insurance at all. Which he thinks would be better than what he has now, if he got in a car accident or contracted an illness, but they won’t pay for his knee treatments.

  9. I do not have access to Romney care. All I have is a requirement that I pay insurance companies a fortune that I simply can’t afford. That’s all I have and the insurnce companies know it.

  10. Brooklin bridge, i currently live in Texas which has the highest number of uninsured people and therefore much human suffering.. You live in the most liberal state and have access to Romneycare. These factors might color our outlooks.

  11. Finally, I have some friends with pre-existing conditions. I think I even have one myself. But they/we are not the only people in the country. To justify this travesty of a corporate give-a-way masquerading as a public program by the fact that these people will indeed have a short period of reprieve just isn’t enough, nor are the other categories of people who will be helped, no matter how heart-pulling their description when you compare their numbers to the number of people that will actually still be left out alltogether or the number of people that will end up with pure junk insurance that does nothing but sweep the problem under the rug.

    And one of the worst things about this bill is that it is absolutely ready made for corruption and dismantling. It is wide open to Republican attacks of “whittling away” coverage and the few good things that remain every time they want to drag out a discussion on the deficit or on where they will get the funding for their next three simultaneous wars.

  12. Swarthmore mom, knowing those wiley ol coots, they will profit in any environment.

    No need to give em a captive audience. To say that corporations don’t want all those captive payers would be akin to the right wing argument that the more you tighten your belt, the fatter you get. I don’t think so…

    Look, I understand and respect your point of view: Better go for some good that can be expanded on later than nothing at all. (I realize that summary is a bit presumptuous of me — let’s say that it doesn’t completely contradict your view point)

    You also understand my position (you have indicated as much) that at a certain point in the process of “compromise”, the give-aways reach structural limits that preclude the possibility of future expansion or good. And frankly, given subsequent events, I think Obama’s intention was to start the whole process so far to the right not that Republicans would accept it, but rather so that liberals would be left completely high and dry with nothing to say or get upset about. The plan was for the “fuc*ing retards” to just stand there speechless.

    The public option was exactly that point. When that was made to disappear so that no viable government oversight/regulation of the insurance companies was possible, we crossed the threshold of compromise into an area where the bill no longer had anything to do with health care and simply became a highly toxic give-a-way to private enterprise with the provisio that there would be enough initial goodies included to market the fiasco it to a highy gullible and miss-informed public.

    Since all that went down, Obama and his administration have revealed themselves beyond any reasonable doubt to be right wing centrists (and that is on a sliding scale where Richard Nixon would be considerably to the left). This gives further strong indication that there is little or nothing intended in the bill that is or ever was for the purpose of being expanded upon or that will metemorphisise into a real health care program the way social security and Medicare did. Au contraire. The bill is so packed with loop-holes and structural weaknesses that the only thing that will stick is the individual mandate.

    I live in Massachusetts and I have been simply blown away at how the insurance companies can get around any restrictions the state puts in front of them. I have to imagine that part of the reason for that is because the Romney care bill, actually better than the Obama one, was put together by someone who wanted to throw big business a bone not the people of his state (who he saw as a vast reservoir of personal gardeners and lawn keepers). The insurance companies are killing us. The state makes it incredibly difficult to actually “get” any relief or assistance unless you are flat flat broke or destitute. But at the same time, the last thing the state is doing is controlling prices. In spite of what the 250 thousand a year media fat cat pundits say, or the “responsible people” who make hundreds of thousand a year and have no worries about paying for health care, everything is not fine and I resent the state forcing its citizens to go bankrupt simply as a boon to private enterprise and as an utterly hypocritical means of sweeping the problem under the rug.. We can go bankrupt just fine with out the state speeding up the process with the fig leaf of “health care” to balm their conscience.

    And that simple mandate, once made totally legitimate by the Supreme pack of fascists, will introduce a slide that will carry social security and Medicare in the not too distant future right down to the same fate; a mandate forcing citizens to purchase its own social safety programs from private enterprise with no centralized “independent” government control. Obama is already preparing the way by his Trojan horse of a “payroll tax holiday” which is in reality simply a means of de-funding the social safety net programs and preparing the media arena for constant blasts of “we have to privatize them as there is no more money bla bla bla”. And lo and behold, there will be no constitution issue because that was allready taken care of in 2012.

  13. Another angle of the law is that insurers can no longer deny people insurance for pre-existing conditions. The inability to deny people with pre-existing conditions is only economically feasible if you have the mandate, since otherwise people just don’t buy insurance until they get sick, and then sign up as soon as they do, turning the whole idea of insurance on its head.

    An Obamacare without the mandate is horrible for insurers who end up getting a lot of people as customers who only exploit the system.

    Well anyway, yesterday Obama had another bad day in court, suggesting that if the Supreme Court tosses out the individual mandate, they’ll also toss out the rest of the law, meaning insurers won’t have to take on people with pre-existing conditions.

    So investors are buying up these stocks, because the nightmare scenario of having to accept customers with pre-existing conditions but not having the mandate may be off the table.

    Read more: http://www.businessinsider.com/healthcare-stocks-are-surging-2012-3#ixzz1qXCkTyYc

  14. How did legal observers and Obamacare backers get it so wrong?
    By Greg Sargent

    I didn’t mention this yesterday, but in his interview with me about the limiting principle, former Reagan Solicitor General Charles Fried was scaldingly critical of the willingness of the conservative bloc of Supreme Court justices to traffic in some of the most well-worn Tea Party tropes about Obamacare.

    “I was appalled to see that at least a couple of them were repeating the most tendentious of the Tea Party type arguments,” Fried said. “I even heard about broccoli. The whole broccoli argument is beneath contempt. To hear it come from the bench was depressing.”

    Which raises a question: How did so many commentators predicting this would be a slam dunk for the Obama administration get it so wrong?

    Many people have blamed Obama Solicitor General Donald Verrilli’s poor defense of the law for the sudden jeopardy Obamacare finds itself in, and there’s no denying he was unprepared to answer questions that we’ve known for months would be central to the case.

    But there’s another explanation for the botched prediction: Simply put, legal observers of all stripes, and Obamacare’s proponents, including those in the administration, badly misjudged, and were too overconfident about, the tone, attitude and approach that the court’s conservative bloc, particularly Justice Scalia, would take towards the administration’s arguments.

    Keep in mind: Many observers, Obama officials included, spent weeks treating Scalia like a potential swing vote on the case. Lawyers defending the law wrote some of their briefs and opinions with an eye towards persuading Scalia. They consciously invoked Scalia’s own words from a 2005 opinion affirming Congress’s power to control local medical marijuana in hopes it signaled he might be open to the administration’s defense of the individual mandate.

    This now looks like a terrible misjudgment. During oral arguments this week, Scalia invoked the broccoli argument to question the goverment’s case. He mocked the government’s position with a reference to the “cornhusker kickback,” even though that’s not in the law. As Fried notes, this language is straight out of the Tea Party guerrilla manual that was written during the battle to prevent Obamacare from becoming law in the first place.

    All of which is to say that the law’s proponents were badly caught off guard by the depth of the conservative bloc’s apparent hostility towards the law and its willingness to embrace the hard right’s arguments against its constitutionality. They didn’t anticipate that this could shape up as an ideological death struggle over the heart and soul of the Obama presidency, which, as E.J. Dionne notes today, is exactly what it has become.

    By Greg Sargent | 11:10 AM ET, 03/29/2012

    Washington Post

  15. The above is an illustration of the fact that only legislation that is beneficial to corporations has a chance to get sixty votes whether Obama supports it or not. Single payer will not pass the current congress.

  16. The Senate on Thursday thwarted Democratic plans to strip billions of dollars in tax breaks from the largest oil companies, just an hour or so after President Obama urged the chamber to kill off the deductions.

    Lawmakers voted 51-47 to block Sen. Robert Menendez’s (D-N.J.) bill. Sixty votes were needed to advance the measure.

    Two Republicans — Sens. Susan Collins and Olympia Snow, both from Maine — crossed party lines and voted to repeal the tax breaks. Four Democrats — Sens. Mark Begich (Alaska), Mary Landrieu (La.), Ben Nelson (Neb.) and Jim Webb (Va.) — voted against the bill.

    Even if the bill had gained Senate approval, House passage was extremely unlikely, but the vote will likely play a role in the Democrats’ election-year message. Vulnerable incumbents like Sens. Scott Brown (R-Mass.) and Dean Heller (R-Nev.) toed the party line on oil subsidies, and it seems likely that voters in Massachusetts and Nevada will be reminded of this morning’s vote in the fall.

  17. @Swarthmore: I’d bet against that hedge fund guy. Healthcare stocks went UP in response to Obamacare passing, in anticipation of record profits due to the individual mandate. That is very valuable to the the health insurance companies; I have read elsewhere (by financial experts) that their financial benefits of Obamacare outweigh the added costs many times over.

    That is how Obama got them to let it pass in the first place (plus promising them under the table that the public option would fail, which it did, due to Obama’s efforts via Rahm and Liebermann).

    As it stands, I think the supremes can, theoretically, simply make the mandate unconstitutional and leave the rest alone. Insurance companies could still be required to cover pre-existing conditions, and have no individual mandate. That is part of the current debate.

    Personally I think they should only be allowed to deny coverage based on a pre-existing condition if there is actual medical evidence, peer-reviewed journal studies, that show an undisclosed condition is definitely a factor in the condition for which coverage is sought. An insurance company actually claimed that undisclosed teenage acne was a pre-existing condtiion and reason to deny coverage for breast cancer, of which the insured then died. That is ludicrous.

  18. Brooklin, Just heard some hedge fund guy on TV say to buy the health insurance stocks if the whole mandate is struck down because their profits will increase because they won’t be required to insure those with pre-existng conditions.

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