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Janet Adamy (WSJ) @janetadamy #supremecourt @louiseradnofsky
First chunk of today’s arguments is on whether the whole law or just parts of it would go away if the court strikes down individual mandate.
Liberal justices went head-to-head with conservative judges Wednesday in effort to protect the health law.
Liberal justices arguing strongly to keep most of overhaul law even if court strikes the individual mandate.
Sotomayor was first to interrupt challengers’ lawyer Clement, who is arguing whole law should be invalidated.
Sotomayor: “Why shouldn’t we let Congress” decide what to do, she asked.
Sotomayor: “What’s wrong with leaving it in the hands of people” who should be taking this decision “not us?”
— Personal Comment: Talk about a statement that is ... I have no words: the LAST thing she would actually want is to have this in the hands of the people.
Clement responds that without the individual mandate, the health law would be a “hollowed-out shell.”
Conservative justices Scalia and Alito have seemed to endorse Clement’s case.
Scalia cites “legislative inertia” as a reason not to let Congress decide how much of the law to keep.
Alito says judges should consider that the legislation wouldn’t have passed without the individual mandate.
Ginsburg has sought to argue that the most legally conservative position is to uphold the law.
Ginsburg: If they must choose between wrecking operation and salvage job, salvage job is more conservative
Roberts has asked several questions of Mr. Clement that further the case for striking down the whole law.
Roberts has suggested that whole health law should be considered linked to the mandate.
Roberts: Law’s myriad other provisions, like black-lung payments, were included as sweeteners to pass bill.
Roberts: Without them, Congress “would not have been able to cobble together the votes to get it approved.”
Kennedy has asked broader questions about the precise test to determine what Congress intended.
Kagan has indicated that if the choice is between leaving half-a-loaf and no loaf, half-a-loaf wins.
—Personal Comment: If the choice is half an unconstitutional apple and a whole one, then they’re both bad.
Breyer aggressive in challenging Clement to say what he proposes the justices do to resolve fate of the law.
Breyer suggesting that his options include appointing a special master or going back to the district courts.
—Personal Comment: talk about activism...
Breyer prompts laughter when he calls expanded health services for Native Americans “the Indian thing”
—Personal Comment: (Most tribes are exempted from Obamacare because they already have a Government-run health care system).
Breyer: “Those [other provisions] have nothing to do with the [mandate] stuff...They can stand on their own”
Feeds now coming from WSJ’s Brent Kendall. Clement done, Justice Department lawyer Edwin Kneedler up next.
[Justice Department defense - against severability]
WSJ’s Kendall: Kneedler says justices should reject the challengers’ “sweeping” proposition that whole law must be invalidated
Kneedler says most of the law’s provisions don’t even apply to the parties who challenged insurance mandate.
— Personal Comment: since the plaintiffs are 26 states, that’s a silly argument... the states are charged with implementing or enforcing a large chunk of the law, right?
Ginsburg says that if mandate falls, legislative branch should decide what should happen to the rest of law.
— Personal Comment: while I’m no lawyer, I gotta wonder if that’s a common position at all at the appellate levels.
Roberts asks if there will be new litigation on remaining parts of law if court leaves law place without mandate
— Personal Comment: certainly there will be (re: Catholic Church), but frankly that’s not something that should concern the Court.
Scalia suggests it would be better to invalidate the whole law and let Congress start from scratch.
— Personal Comment: I’m guessing Justice Scalia is getting tired of the Lib justices speaking their minds, and he opted to throw down that gauntlet.
Several justices express concern about harming insurers if mandate falls but the rest of the law stays in place
Swing vote Kennedy worries about imposing a “risk” on insurance companies “that Congress never intended.”