Day three of the Supremes’ hearing of the ObamaCare case featured severability — i.e., if you find the individual mandate unconstitutional, what does that do to the rest of the mammoth law? ObamaCare does not include a severability clause what would have allowed it to stand if any part of the law gets ruled out. The mandate is the lynchpin of the law’s attempt to achieve “affordability,” and without it, insurance companies are forced to disallow consideration of pre-existing conditions. People could sign up for insurance coverage only when they face a health crisis. Insurance companies could quickly go bankrupt, without being able to rely on the broadly healthy purchasing insurance that is used by people when they need it. But the mandate puts the government in the position of forcing Americans to engage in commerce as the price of remaining on the right side of the law.
Based on the arguments that came from the conservatives plus Justice Kennedy on the court today, the mandate could go down, taking the whole kit with it.
The court’s conservatives sounded as though they had determined for themselves that the 2,700-page measure must be declared unconstitutional.
“One way or another, Congress will have to revisit it in toto,” said Justice Antonin Scalia.
Agreeing, Justice Anthony Kennedy said it would be an “extreme proposition” to allow the various insurance regulations to stand after the mandate was struck down.
Meanwhile, the court’s liberal justices argued for restraint. Justice Ruth Bader Ginsburg said the court should do a “salvage job,” not undertake a “wrecking operation.” But she looked to be out-voted.
Perhaps that’s because salvaging the bad work of Congress isn’t the court’s job. The court is supposed to rule whether the law is constitutional or not and let the legislative and executive branches sort out the consequences. The Democratic Congress chose not to include severability.
After today’s arguments, and maybe as soon as this evening but before Friday, the justices will hold a preliminary vote on whether ObamaCare is constitutional. We will not know the outcome of that vote for some time, probably at least a couple of months. But glimpses of where the court is going may emerge, as the preliminary vote will sort the sides out, and the senior justices on both sides will either assign other justices to write the opinions for and against, or write them themselves. Right now it’s looking like a 5-4 to strike down the entire law, and I’m guessing that Chief Justice Roberts ends up writing the majority opinion and Associate Justice Ginsberg writes the dissent.