Day three of the Supreme Court health care marathon focuses on two issues: severability – i.e., what happens to the rest of the law if the Court invalidates the mandate, and Medicaid expansion – i.e., can Congress require the states to go along with the law’s enormous expansion of the Medicaid program as a condition of continuing to participate in Medicaid.
The severability argument has concluded (Medicaid starts at 1 pm, I think). And reports are coming in fast and furious, all more or less to the effect that the Justices just have no idea what to do about severability. It’s really hard to figure out what Congress would have wanted; the law is really long (apparently Justice Scalia quipped that requiring them to sort through 2,700 pages of legislation to determine what could stay and what had to go might violate the 8th Amendment’s ban on cruel and unusual punishment); and the Court is just not well suited to that kind of inquiry.
As a reminder: the Court is presented with three options. One, pressed by the parties challenging the law, is that the mandate is non-severable – that is, if the mandate goes, the entire law has to go with it. Another, pressed by the Obama administration, is that if the mandate goes, the “guaranteed issue” (no pre-existing condition exclusion) and “community rating” (standardized rates for people in the same area) provisions would also have to go but the rest of the law could survive. And a third, pressed by no party but argued by an outside lawyer appointed by the Court, is that the mandate is entirely severable and can be excised while the rest of the Act remains intact. Reports are that Justices from all ideological viewpoints expressed deep concern about all of these options and that it was extremely difficult to figure out where anyone stood by the end.
One commentator hypothesizes that the evident difficulty of figuring out how to handle severability might actually increase the mandate’s chances of surviving.
The Supreme Court spent 91 minutes Wednesday operating on the assumption that it would strike down the key feature of the new health care law, but may have convinced itself in the end not to do that because of just how hard it would be to decide what to do after that. A common reaction, across the bench, was that the Justices themselves did not want the onerous task of going through the remainder of the entire 2,700 pages of the law and deciding what to keep and what to throw out, and most seemed to think that should be left to Congress. They could not come together, however, on just what task they would send across the street for the lawmakers to perform. The net effect may well have shored up support for the individual insurance mandate itself.
The dilemma could be captured perfectly in two separate comments by Justice Antonin Scalia — first, that it “just couldn’t be right” that all of the myriad provisions of the law unrelated to the mandate had to fall with it, but, later, that if the Court were to strike out the mandate, “then the statute’s gone.” Much of the lively argument focused on just what role the Court would more properly perform in trying to sort out the consequences of nullifying the requirement that virtually every American have health insurance by the year 2014.
That may seem like a lame reason to uphold the law (“it’s so HAAAAARD!”), but there’s actually a plausible basis for it. There is a general principle, cited in many cases, that the federal courts must presume that an act of Congress is constitutional, and should invalidate it only when it’s absolutely clear that it runs contrary to the Constitution. In practice, I think that principle is usually ignored. Most of the time, a judge is happy to strike down a law when his or her view of the Constitution conflicts with the law, and though the judge may use the word “deference,” none actually is given. But in this case, the evident near-impossibility of figuring out what Congress “would have done” without the mandate may push the Court toward upholding the law, even if it has serious doubts as to its constitutionality, because in a situation like this it is uniquely appropriate to defer to the political branches. We’ll see.