[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.”
Scalia: "totally unrealistic" to expect SC to go through 2,700 pages of health law and decide what should remain
Kagan suggests court has no business trying to guess if Congress would/wouldn't have voted for other parts in law
-- Personal Comment: I gotta give her that one... so the right answer, then is to send the rest of it back to Congress and ask them to decide the fate of the rest of it, right? (snicker)
Roberts suggests Kneedler made effective case that if mandate falls, guarantee that insurers accept all customers must go, too...But, Roberts adds, that doesn't tell the court what to do with all the many other provisions of the law.
I hope Kennedy is truly concerned about that, as we all should be. Invalidating the mandate while keeping the rest of the law is the worst case scenario, worse than leaving the whole law intact.
If insurers must still accept all preexisting conditions, and people are under no mandate to have insurance, then nothing stops people from dropping their insurance now (or not getting in the first place) and buying in only when they are hit with an expensive medical emergency.
Insurers cannot survive in that kind of model, and the road to single payer will become an expressway.