By Tony Mauro
Supreme Court justices appeared sharply divided over what they should do with the Affordable Care Act if they decide that the central feature of the law, the individual mandate, is struck down.
On the third and final day of arguments over the landmark health care law, the choice, as Justice Ruth Bader Ginsburg put it, was between a "wrecking operation and a salvage job" — in other words, scrapping the entire law, or finding portions of it that can survive even without the requirement that most Americans buy a minimum level of insurance coverage. Justices found major problems with both alternatives, making it difficult to predict how they would rule.
Bancroft partner Paul Clement argued for striking down the entire law, asserting that this was an instance where "a half a loaf is worse" than nothing at all. But Deputy Solicitor General Edwin Kneedler argued that the best and most judicially modest approach would be to only strike down the related provisions that would require insurers to cover individuals regardless of medical history or pre-existing conditions. Both alternatives faced hostile questions from several justices.
Justice Antonin Scalia told Kneedler sarcastically that asking the Court to pick and choose between provisions of the law that should stay or go would raise Eighth Amendment problems — cruel and unusual punishment, in other words. But Ginsburg said it would be wrong to force Congress to start from scratch, when many provisions, benefiting black lung victims and American Indians, for example, are unrelated to the individual mandate.
The undercurrent this morning was almost an assumption that the individual mandate will be overturned. At various points, Justice Anthony Kennedy described that as a "significant possibility" or a fair "hypothesis."
The argument over the severability of the individual mandate was the third of four the Court scheduled on the Affordable Care Act, and the first in which Solicitor General Donald Verrilli Jr. did not appear.
Kneedler, a longtime deputy SG, represented the government instead. Because none of the parties embraced the lower court's view that the mandate is severable — and the entire rest of the law could survive — the Court appointed H. Bartow Farr III of Farr & Taranto to advance that argument.
After a lunch break, the Court will tackle the final issue: whether the massive expansion of Medicaid the law calls for intrudes on the power of states, which operate the health care program for the poor.
For continuing updates and background on the arguments, visit our health care hub at www.nlj.com/healthcare.