Posted on March 28, 2012 at 6:56 pm by Lyle Denniston
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 “can’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.
The Wednesday morning argument offered the Court three mutually exclusive options: strike down all of the Affordable Care Act along with the mandate (the challengers’ position), strike down only two core changes in the way the health insurance system works (the government position), and strike down nothing but the mandate (the position of a Court-appointed lawyer). Not one seemed to be especially appealing to members of the Court, and each of the three lawyers who came to the lectern faced tough and often skeptical questioning, from across the bench.
Congress’s capacity to react in a sensible way also came into some question, particularly from Justice Scalia and, in a way, from Justice Anthony M. Kennedy, both of whom seemed to harbor doubts that the lawmakers would be up to the task of working out a new health care law if this one failed, either totally or partially. Scalia noted the problems in the filibuster-prone Senate. Kennedy wondered whether expecting Congress to perform was a reference to “the real Congress or a hypothetical Congress.”
In the past, the Court has not spoken clearly about what is called the doctrine of “severability” — that is, if one part of a federal law is struck down as unconstitutional, can most or all of the rest of it be “severed” from the dead part and thus salvaged. At the end of the morning argument, it was not evident that the Court will do very much clarifying in the health care case. Of course, it could leave the doctrine as it stands if it were to uphold the mandate, and it would not have to solve the struggle that it encountered over the fate of the ACA without the mandate.
The Court also could avoid settling the severability issue in this case if it were to take the government’s suggestion that, for technical legal reasons, none of the challengers had any right to ask that other parts of the ACA be struck down along with the mandate. That argument, advanced by Deputy Solicitor General Edwin S. Kneedler, found no support on the bench. If the severability issue has to be faced, due to a nullification of the mandate, the Court appeared determined to try to work through it, however distasteful — or even disorienting — that task might be.
Washington attorney Paul D. Clement wanted to make that task very easy for the Justices: after you take out the mandate, then declare none of the remaining provisions can stand — however unrelated they may seem to be to the mandate. Though some parts of the law may be worthwhile, said Clement, “you are going to have to take the bitter with the sweet.”
When Justice Sonia Sotomayor became the first to ask “why don’t we let Congress fix it,” the challengers’ lawyer said that Congress would have to get involved no matter what the Court decided, but he said the Court would have to decide what task to leave to the lawmakers: “Do you want to give Congress the task of fixing the statute after something has been taken out, especially a provision at the heart, or do you want to give Congress the task of fixing health care?” It was clear that he thought the better result would be to make it so that Congress would have to start all over to fix the nation’s health care system.
Justice Scalia then set out on what would become a dominant theme: the difficulty of figuring out, after the fact, what Congress would have wanted stricken from the law if it knew it could not have the mandate. If there were one small provision that had to be stricken, perhaps because Congress wrote it into the law to help win votes for the overall measure, Scalia asked, why would the entire law have to go? But that simply enabled Clement to make his basic point that, it was not some small provision that caused the constitutional problem, it was the mandate, the package of provisions related to it, and many other sections of the law that would be linked directly or indirectly to the mandate.
The more liberal members of the Court began joining in, suggesting that they were interested in salvaging as much of the remainder of the law as they could — with the possible exception of the basic reforms that Congress had sought to impose on insurance companies to assure that they provided coverage even for unhealthy persons and to assure that they did not raise premiums unreasonably. If the Court could preserve “half a loaf” rather than taking away the entire loaf, Justice Elena Kagan said, that would be preferable. And Justice Ruth Bader Ginsburg told Clement that “there are so many things in this Act that are unquestionably okay.” So, she said, why make Congress reenact those? Pointedly, she wondered if the Court were being asked to make a choice “between a wrecking operation…or a salvage job.”
Clement, though, insisted that if the Court did salvage everything but the mandate and its immediately related provisions, nothing would be left but “a hollow shell.” Chief Justice John G. Roberts, Jr., countered that it would not be a hollow shell, since many are things that Congress has put in the law to keep long-standing provisions of federal law intact, and those would have nothing to do with the mandate.
Justice Kennedy pressed Clement to spell out the kind of severability standard he wanted the Court to apply, noting that the Court did not want to be drawn into trying to make an “intrusive” inquiry into what was on Congress’s mind in adopting one provision or another as part of the ACA. “What test,” Kennedy asked, “do you suggest that we follow if we want to clarify our jurisprudence?” The “objective test” the lawyer suggested was that the Court determine whether the law “can operate in the manner that Congress intended” if a part (like the mandate) were stricken.
Justice Sonia Sotomayor countered that no statute ever operates as Congress had intended, if part of what Congress had put into it is taken out. So she said the test had to be something more than congressional intent. Why not, she asked, start out with the presumption that Congress would have wanted everything but the invalid part to be salvaged. If Congress has not explicitly said that nothing else is to be salvaged, she suggested, the Court should not do away with any other part. “We should let them fix their problem….Why, in a democracy structure like ours,” should the Court be drawn into “making the legislative judgment.”
These exchanges gave Clement an opportunity to make what he called a broader point. Looking back to a 1976 campaign finance ruling, in which the Court had drawn unusual distinctions between giving and spending, striking down limits only on spending, Clement said that set off four decades of effort by Congress to try to fix what was left of the law, “largely unsuccessfully.” That, he said, illustrates why the Court should give Congress a chance “to actually fix the problem” by striking down the entire law and thus set the stage for the lawmakers to start all over on health care.
The Justices, though, did not seem to be seeing in Clement’s argument for sweeping it all aside an answer to the judicial dilemma. “What do your propose that we do,” Justice Stephen G. Breyer asked, “other than spend a year reading all this…” Breyer seemed to be assuming that the Court would not strike down everything else, as Clement wanted, but follow a more selective path. Justice Samuel A. Alito, Jr., also pressed Clement for a “fallback position” if the Court were not to strike down the remainder of the ACA. He slightly modified his view, saying that the Court could use its own judgment, but he wound up again arguing that the best route would be to wipe the slate clean, and let Congress respond.
Deputy Solicitor General Kneedler ran into immediate difficulty as he opened his argument with the point that the Court should not even address severability. But that led the Justices into a series of questions about how anybody feeling wronged by something in the law would go about challenging it in court. Kneedler responded that, just because no one might be able to sue, there was no obligation to give them that chance. Justice Ginsburg chimed in to repeat her comment that it should not be for the courts to sort out what happened, but that should be left to Congress.
Justice Scalia also argued in favor of leaving it to Congress, but he made it clear he was talking about doing so only after the entire Act had been voided along with the mandate. Justice Kennedy seemed to agree, by arguing that the Court would be seen as exercising judicial activism, not restraint, if it allowed some part of the law to remain intact but that wholly changed what Congress had intended to happen in the health insurance industry.
When Kneedler insisted that the Court look closely at the text of the ACA and decide what to keep and what to save, several Justices rebelled, suggesting that that would be an irksome and very difficult and time-consuming process. “We are going to go through this enormous bill, item by item, and decide each one?” Justice Scalia asked incredulously. “Is this not totally unrealistic?” It would be a revolution in the Court’s severability approach to have to do that, Justice Kagan added.
Justice Breyer offered an un-judicial approach, in which Kneedler and Clement would get together and work out between them what parts of the law to save and what to have cast aside.
Near the end of his argument, Kneedler moved to a broader argument, discussing some of the consequences of a decision to nullify all of the Act, including throwing millions of people who had newly obtained insurance off of the rolls. Many changes in the Medicare program for the elderly also have gone into effect, he added. But the Chief Justice interrupted to say that all of that occurred on the assumption that the mandate was constitutional, and those developments would not keep the Court from making its own decision about the mandate and the consequences of nullifying it.
The final argument on severability, by Court[-appointed Washington lawyer H. Bartow Farr III, was in favor of salvaging all of the Act if the mandate had to go, disagreeing even with Kneedler’s suggestion that two provisions closely related to the mandate would have to go if it did. But that part of the argument seemed to bog down in a dispute over whether the insurance industry would be bankrupt if it lost the mandate as a generator of a huge new pool of premium payers whose money would make the required expansion of insurance coverage work.
Congress, Farr said, had adopted a half-dozen other provisions that would help offset the costs of the expanded coverage, including a system of very generous subsidies to encourage people to obtain insurance even if they were no longer required to do so by a mandate.
It did not appear that Farr had any success in trying to explain away findings by Congress that the mandate was “essential” to make the other changes in the health insurance market work as intended. The definition he offered of the word seemed too exotic for the Court.