Skip to comments.Justice Kennedy: Would leaving parts of ObamaCare in place be more “extreme” than entire repeal?
Posted on 03/28/2012 10:36:32 AM PDT by SeekAndFind
So far there doesn't appear to have been any fireworks — or more accurately, duds --- at the Supreme Court today as there were yesterday. In part, that's because the topics under review aren't as explosive: severability and Medicaid expansion. That doesn't mean that the day has been entirely uninteresting, either, as Philip Klein reports for the Washington Examiner:
Justices on the U.S. Supreme Court this morning considered what to do with the rest of President Obama's national health care law if its individual health insurance mandate is struck down. Though it was difficult to get a clear read on their thinking as they asked tough questions of all sides, the Court seemed open to the possibility of overturning the entire law...
Deputy Solicitor General Edwin Kneedler, on behalf of the Obama administration, was arguing that only the ban on pre-existing conditions and cap on the cost of policies should be turned down if the mandate was gone. But interestingly, Justice Anthony Kennedy argued this could be seen as more “extreme” than simply striking down the whole law.
Antonin Scalia went back and forth on this, arguing from both perspectives. He commented that striking down the mandate didn’t necessarily make the rest of the law invalid, comparing it to the Cornhusker Kickback and stating that its removal wouldn’t mean that the rest of the bill couldn’t remain in force. Later, though, Klein reports that Scalia remarked that his “approach” would be that the overturning of the mandate would have to mean overturning the whole bill. What seems interesting from these exchanges was that the justices seem to have gotten past the notion of explicit severability and had taken a utilitarian look at whether the consequences of ending the individual mandate necessitated a broader rejection of the PPACA.
And it doesn’t appear that those concerns are limited to the conservative jurists, either:
A court-appointed attorney, Bartow Farr, made the case for preserving the rest of the law if the mandate is found unconstitutional. But he ran into tough questioning from the liberal justices, who pointed to Congressional findings warning about a possible “death spiral” for insurers if they were forced to cover anybody who applied for insurance without healthy people having to be brought into the market.
Oral arguments are a time for what-ifs, so it’s good to keep from predicting outcomes merely from the questions asked. However, the court seems open to two paths to reject severability — the explicit removal of it from the bill, and the practical consequences of overturning the mandate. That can’t be good news for the White House. It’s not as dramatic as yesterday’s events, but still very intriguing.
We’ll update this with more reports and spot analysis as they come in.
Update: Jeffrey Toobin says that the argument today shows that the individual mandate is “doomed,” and he downgrades the situation for the White House to “plane wreck” (via our Headlines):
CNN Senior Legal Analyst Jeff Toobin: This still looks like a train wreck for the Obama Administration, and it may also be a plane wreck. This entire law is now in serious trouble. It also seems that the individual mandate is doomed. I mean, Anthony Kennedy spent much of this morning talking about if we strike down the individual mandate, how should we handle the rest of the law? Now, it is less clear that they are going to strike down the whole law. There does seem to be some controversy in the court about that. Certainly there are some members of the court, Antonin Scalia, Justice Alito, who want to strike down the entire law, but it seemed almost a foregone conclusion today that they were going to strike down the individual mandate, and the only question is does the whole law go out the window with it?
Whitfield: Oh, my goodness. Okay, so I have got about 20 seconds or so left. How might this impact arguments later on this afternoon, Jeff?
Toobin: Well, it’s hard to imagine how things could be going much worse for the Obama Administration, but now they’re going to be dealing with the Medicaid portion, and they may decide to get rid of that as well.
Pass the popcorn!
Absent the individual mandate, guaranteed issue and community rating will very soon destroy private insurance. So yes, striking down the whole bill is less radical than full repeal.
If the individual mandate is tossed, but other mandates remain, this could cripple even worse private insurance companies. If there’s no individual mandate while insurance companies cannot deny coverage for pre-existing conditions, you’re going to get a whole slew of people who will drop insurance, not pay premiums, but then only sign up when they get sick or have an accident. Private insurance commpanies can’t survive this way.
Uhh ... full repeal is less radical than partial repeal. Got a little tongue tied.
STRIKE IT ALL DOWN!!!
How is forcing a company to sell you something different than forcing me to buy something?
If they strike down the individual mandate, but still force companies to sell you insurance on-demand then everyone may as well drop their coverage until they get sick
CNN bimbo reaction quite revealing -
“Oh my goodness”.
yes because the Court would be constructing its own severability clause which does not exist
All this and no one even brings up the hundreds of Billions already spent via the implimentation by unelected officials. More the 10,000 pages of interpretation of the bill have been published and have the effect of law, and yet not one mention.
Color me very doubtful.
Maybe that's what Obama wants. Destroy the private insurance industry, blame the Supremes, and demand that Congress immediately pass legislation putting everybody on Medicaid because we would then have "no choice".
If they only throw out the individual mandate, that may doom a lot of insurance companies, but Obama can just make some speeches demonizing the greedy insurance companies. That should solve the problem.
When did the Supreme Court get the line item veto right on bills? Even the President doesn’t have the right to pick and choose what to accept or veto in a bill. I believe there is a Supreme Court decision on this. A bill must be accepted in its entirety or vetoed in its entirety. So where is the Supreme Court given the right to pick and choose what it wants to declare constitutional in a bill? Either ObamaCare is constitutional in its entirety or it must be rejected as unconstitutional in its entirety. No halfway decisions are constitutional.
Well, the destruction of the private insurance industry is exactly what Obama wants, and by his own admission. He wants Single Payer, but accepts he cannot get it immediately but that it will take time. Exactly, the current law would get there eventually. The current law minus the individual mandate would get there much faster.
A mandate is merely a dictate. Thus, if we are dictated to, do we then live under a Dictatorship?
If our freedom of choice is taken from us by the dictates of a hostile Federal government, then what Liberty do we have left?
Yer tongue got wrapped around yer eye tooth an y’all couldn’t see watchur sayin?
Actually, the only real authority the Court has is to examine cases before it, in which one or both parties petitions for some particular form of relief, and either grant such relief (in whole or in part), deny such relief, or direct a lower court to examine some particular issues it has not yet considered and grant or deny such relief as it finds appropriate.
Its ability to strike down statutes stems from the fact that, when issuing decisions, the Court generally gives some indications as to how it would likely rule if similar cases where to come before it, and lower courts generally want to avoid issuing decisions which they know the Supreme Court would strike down. A court may effectively strike down a statute by saying that (1) its was illegitimately enforced in the case facing the Court, and (2) if the act remained enforceable in some situations but not all, the Court would almost certainly accept the argument of anyone charged with violating it who claimed he believed it was unenforceable in his situation, and thus that his actions were effectively legal. Unreasonable ignorance of the law is no excuse for illegal action, but it is not proper to prosecute someone for doing something a reasonable person would believe to be legal.
A bigger problem is that it is very difficult to roll back the effects of legislation. If a statute which extends the deadline to file some paperwork and also does some other things is struck down, what should happen if someone had some paperwork which was not filed by the old deadline, but would be considered timely under the new one? Or, if the statute eased restrictions on certain types of construction, what should happen if some new construction was undertaken during the time the statute was presumed legitimate, which would not have made economic sense had the restrictions not been eased?