Chief Justice John Roberts remains a wild card, with Justice Anthony Kennedy continuing to look like he will side with the conservative wing and toss the law.
The issue of severability is even more complicated because the government, which argues that the vast bulk of the law can stand on its own without the mandate, acknowledges that two issues tied to the mandate--coverage of individuals with pre-existing conditions and community ratings that affect premium pricing--would fall along with the mandate. But the attorney for 26 states pushing for the whole law to be thrown out made a persuasive argument of how the tentacles of the mandate reach out to so many other provisions.
Justice Ruth Bader Ginsburg told attorney Paul Clement, representing 26 states that filed suit against the law, that many parts of the act are “unquestionably OK” and should remain. “So why should we say it’s a choice between a wrecking operation, which is what you are requesting, or a salvage job? And the more conservative approach would be salvage rather than throwing out everything.”
Clement replied that the mandate affects too many parts of the law and would leave what’s left of the law “a hollow shell.”
“What makes this different is that the provisions that have constitutional difficulties are the very heart of this Act,” Ginsburg continued. “And then if you look at how they are textually interconnected to the exchanges, which are then connected to the tax credits, which are also connected to the employer mandates, which is also connected to some of the revenue offsets, which is also connected to Medicaid, if you follow that through what you end up with at the end of the process is just sort of a hollow shell. And at that point I think there is a strong argument for not--I mean, you can’t possibly think that Congress would have passed that hollow shell without the heart of the Act.”
Trying to interpret the intent of Congress is at the core of the severability issue. Congress regularly inserts language in major legislation stating that if one or more provisions are overturned the rest of the law should remain intact. Through a bureaucratic blunder, that language was not inserted in the health care reform law.
On the point of congressional intent, Justice Roberts took issue with Clement’s suggestion that Congress would not have passed the hollow shell: “Well, it would have--it would have passed parts of the hollow shell. I mean, a lot of this is reauthorization of appropriations that have been reauthorized for the previous five or 10 years and it was just more convenient for Congress to throw it in the middle of the 2,700 pages than to do it separately. I mean, can you really suggest--I mean, they’ve cited the Black Lung Benefits Act and those have nothing to do with any of the things we are talking about.”
Clement conceded there are provisions of the reform law that would be attached to legislation moving through the process if the entire law was overturned. “But the question is when everything else from the center of the Act is interconnected and has to go, if you follow me that far, then the question is would you keep this hollowed-out shell?"
At this point, Justice Kennedy asked for a standard or objective test that justices could apply to determine if a statute should stand. Clement replied the test is whether the statute can operate in the manner that Congress intended.
That test didn’t pass muster with Justice Sonia Sotomayor: “No statute can do that, because once we chop off a piece of it, by definition it’s not the statute Congress passed. So it has to be something more than that.”
The Court in the arguments on severability also briefly considered the constitutionality of the law’s expansion of Medicaid and how it fits in with the severability issue. A separate oral arguments session later on March 28 dealt with the Medicaid issue.
Roberts asked Deputy Solicitor General Edwin Kneedler, representing the government: “But what if there isn’t Medicaid expansion? We’ve talked about the individual mandate, but does the government have a position on what should happen if the Medicaid expansion is struck down?”
Kneedler said the rest of the law can operate without the Medicaid provision. Congress, he noted, has many times expanded Medicaid coverage without there being a minimum coverage provision.
Full transcripts of the three days of oral arguments on the constitutionality of the health care reform law are available here.