Analysis of Wednesday morning — the Severability Issue
by Andrew Schlafly, JD
Prior to the argument: News outlets are reporting that outside the Court a small group of supporters of ObamaCare (20) outnumbered a smaller group of opponents of the law (10).
This Wednesday morning the Court has begun addressing the Severability Issue – whether the Individual Mandate, if found to be unconstitutional, may be severed from the remained of the bill in order to uphold the rest. Here is an analysis of the argument:
A majority of the Court (the five Justices on the conservative side) appear to favor invalidating substantial portions of ObamaCare, assuming the Individual Mandate is found to be unconstitutional, and at least four Justices (sans Kennedy) appear to favor invalidating all of ObamaCare:
Justice Samuel Alito pointed out that if legislative intent is the issue, then ObamaCare would not have passed at all without its Individual Mandate. So if the Individual Mandate is unconstitutional, then all of ObamaCare should be invalidated. Moreover, Justice Alito echoed the concern of Justice Kennedy that it would be unfair to force insurance companies to comply with other costly aspects of ObamaCare without the subsidy of the Individual Mandate.
Justice Antonin Scalia expressed concern about “legislative inertia” as a need to declare the entire bill unconstitutional, because Congress may not act quickly to correct problems with a partial upholding of the law.
Chief Justice John Roberts inferred a key concession by the Obama Administration attorney that if the Individual Mandate is unconstitutional, then the requirement that insurance companies accept pre-existing conditions must be invalidated also. The Chief Justice also expressed concern about opening the door to new litigation if parts of ObamaCare were left in place without the Individual Mandate. And he repeated the justifications implied by Justices Scalia and Alito for invalidating the entire law. Earlier, perhaps offering an easy-to-answer question to our side, he observed that portions of the law have “nothing to do” with the Individual Mandate, and that Congress would have enacted those portions regardless (e.g., black-lung benefits). But the predictable response was that this benefit was a sweetener added to pass the controversial bill, and this sweetener may not have passed on its own. An added bonus during questioning was when Chief Justice Roberts asked if ObamaCare should survive if the Medicaid expansion provision is invalidated, a point that AAPS has emphasized in arguing for invalidation of ObamaCare based on its unconstitutional expansion of Medicaid.
Justice Kennedy, widely peceived to be the swing fifth vote, asked more general questions about which legal test should be applied in order to divine the congressional intent about severability. But he clearly expressed his concern that salvaging parts of ObamaCare would impose a burdensome “risk” on insurance companies “that Congress never intended.” In addition, Justice Kennedy questioned whether the Court has the competence or expertise to pick and choose in excruciating detail what should survive in the complex law.
The liberal wing of the Court, consisting of four Justices, appeared solidly in favor of salvaging parts of ObamaCare:
Justices Ruth Bader Ginsburg and Elena Kagan, who likely would uphold the Individual Mandate, indicated their view that other portions of the law should be upheld even if the mandate is invalidated. But these Justices indicated that the three key provisions of ObamaCare (the individual mandate, community rating and guaranteed issue) are linked such that if the Individual Mandate is invalidated, then the other two provisions should likely be invalidated too).
Justice Breyer suggested that complex issues about which parts of ObamaCare to salvage could be remanded back to district court, or to a special master, but this suggestion seemed to lack support by a the majority of the Court.
Bottom line: all of the key parts of ObamaCare seem likely to be invalidated. Moreover, as a practical matter, it would be an almost impossible task for the Court to pick and choose what to uphold among the mammoth law, given the likelihood that key parts of it depend on the unconstitutional mandate. Justice Scalia said it would be “totally unrealistic” for the Court to try to salvage parts of the 2,700-page ObamaCare, assuming the mandate is unconstitutional.
Day Three AM Transcripts: http://ohpcenter.org/writings/reference/REFERENCE-florida-v-hhs-scotus-arguments-day3.pdf