- The Washington Times - Wednesday, March 28, 2012

Wrapping up a three-day marathon of oral arguments about President Obama’s health care overhaul, the Supreme Court heard arguments Wednesday on whether the rest of the law can stand on its own if the justices were to strike down the individual mandate requiring Americans to purchase insurance.

The nine justices seemed to agree that carving out the mandate would dramatically alter much of the law but disagreed on which route to take, with Republican-appointed judges appearing to lean toward scrapping the whole thing while Democrat-appointed judges said that’s a decision for Congress to make.

“It’s a choice between a wrecking operation, which is what you are requesting, or a salvage job,” Justice Ruth Bader Ginsburg told Paul Clement, an attorney for the states seeking to have the Affordable Care Act tossed out in its entirety. The more conservative approach, Justice Ginsburg said, would be to salvage, “rather than throwing out everything.”

The hearings on Mr. Obama’s signature domestic achievement kicked off Monday with the justices considering whether a 19th century tax law blocks them from deciding on the mandate until later, while on Tuesday they heard arguments on whether the mandate itself is constitutional.

On Wednesday, they heard 26 states’ challenge to the law’s massive expansion of Medicaid, as well as arguments about whether the individual mandate is so crucial that the rest of the law cannot survive without it.
Both the administration and the challengers agree at least two parts of the law need the mandate in order to work, but they disagreed on whether to throw the rest of the law out, too.

The two dependent parts require insurance companies to cover anyone regardless of their age or how healthy they are. As insurers add sicker and older Americans onto their rolls, they are likely to face dramatic losses if they don’t also have healthy folks paying in, both sides say.

Mr. Clement said the court should ditch the entire law, but the administration points to dozens of other measures that arguably could stand on their own, such as insurance exchanges and tax credits for buying insurance.

Much of the argument centered on what Congress intended when it passed the health care law.
Mr. Clement argued that lawmakers meant to tie all of it to the mandate, since they removed language from an earlier version that explicitly allowed parts to be severed. But Deputy Solicitor General Edwin Kneedler countered that it’s not the court’s job to figure out what Congress intended to do.

The challengers seems to have a champion in Justice Antonin Scalia. “Once you cut the guts out of it, who knows which parts were desired and which ones weren’t?” he said.

Justice Scalia said that if the court strikes the mandate, it will end up distorting Congress‘ original intent, concluding that the court should just wipe the slate clean so lawmakers can start over. Justice Anthony M. Kennedy seemed to agree, suggesting that striking the mandate but leaving the rest of the law would result in a situation Congress never intended with insurers unduly burdened.

“That can be argued to be a more extreme exercise of judicial power,” he said.

Justice Sonia Sotomayor agreed, but suggested an opposite conclusion: The court should leave the rest of the law up to Congress.

“Why should we involve the court in making the legislative judgment?” she said.

Justice Stephen G. Breyer also took issue with striking the rest of the law, at one point waving two stacks of paper in the air. He said the smaller stack contained provisions related to the individual mandate, while the larger one contained the rest of the law.

“I would say the Breast Feeding Act, the getting doctors to serve underserved areas, the biosimilar thing and drug regulation, the Class Act, those have nothing to do with the stuff we’ve been talking about yesterday and the day before, OK?” he said.

Later Wednesday, the justices grappled with the Medicare expansion provisions, which 26 states have challenged.

They argue that it is coercive for the federal government to say billions of dollars in new Medicaid funding are available only if states add millions of new beneficiaries. The administration says states are free to reject the expansion, but the states say that’s virtually impossible because so much federal money is at stake.

Justice Scalia seemed to agree with the states, comparing the choice to being asked “for your money or your life” — an offer no one can refuse.

But Democrat-appointed justices appeared deeply skeptical of the claim that states are being coerced into accepting federal money just because there’s a lot of it.

“Why is a big gift from the federal government a matter of coercion?” Justice Elena Kagan asked Mr. Clement. “It doesn’t sound coercive to me, I have to tell ya.”

Mr. Clement tried to draw a distinction between the Medicaid expansion under the health care law and times in the past when the government has expanded the program, saying this expansion is more “breathtaking” in its scope than ever before.

But Solicitor General Donald B. Verrilli Jr., arguing for the administration, said that under that reasoning, the Medicaid program could have been deemed unconstitutional a long time ago.

Justice Kennedy, a frequent swing vote on the court, agreed that a line needs to be drawn somewhere.

“A point of being ‘too big’ could be when accountability is lost,” Justice Kennedy said, also expressing concern that the states will have to take on more administration expenses if they accept the extra Medicaid dollars.

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