WASHINGTON (CN) – During the third and final day of oral arguments over health care reform Wednesday, the U.S. Supreme Court considered whether it must scrap the entire law if it deems one component unconstitutional.
The so-called individual mandate, which requires most Americans to purchase health insurance or face a penalty, has borne the brunt of attacks against the law. A lawyer for the 26 states challenging it before the Supreme Court says the provision dooms the entire legislation.
“If the individual mandate is unconstitutional, then the rest of the act cannot stand,” said Paul Clement, who served as solicitor general under President George W. Bush. “As Congress found and the federal government concedes, the community-rating and guaranteed-issue provisions of the act cannot stand without the individual mandate. Congress found that the individual mandate was essential to their operation.”
Clement said that the Patient Protection and Affordable Care Act cannot survive without the individual mandate. The fact that the law still has the community rating and guaranteed issue provisions “will cause the cost of premiums to skyrocket,” he added.
Much like the first two days of oral arguments, the liberal justices defended the bill.
“If we strike down one provision, we’re not taking that power away from Congress,” Justice Sonia Sotomayor said. “Congress could look at it without the mandatory-coverage provision and say this model doesn’t work; let’s start from the beginning.”
A large part of Clement’s debate with the justices concerned what Congress supposedly intended in passing the law, and whether severing the individual mandate and allowing the law to survive would go against that intention.
“Is a loaf better than no loaf?” Justice Elana Kagan asked. “And on something like the exchanges, it seems to me a perfect example where half a loaf is better than no loaf. The exchanges will do something. They won’t do everything that Congress envisioned.”
Clement responded that there are situations where half a loaf is actually worse. “I do think the question that this court is supposed to ask is not just whether they can limp along and they can operate independently, but whether they operate in a manner that Congress intended,” he said.
The best answer “might be to say, we’ve struck the heart of this act, let’s just give Congress a clean slate,” he added. The gallery erupted with laughter when the lawyer facetiously said it wouldn’t “be a big deal” for Congress to re-enact the law in a couple of days.
“You can laugh at me if you want,” he said, “but the point is, I rather suspect that it won’t be easy. Because I rather suspect that if you actually dug into that, there’d be something that was quite controversial in there, and it couldn’t be passed quickly.”
Chief Justice John Roberts pointed out that many of the miscellaneous provisions of the bill, like the black-lung provision and the Indian health care provision, were shoehorned into the law as the price for a vote. They too face peril if the law is deemed unconstitutional because of the individual mandate, he said.
Edwin Kneedler, the deputy solicitor general arguing on behalf of the Obama administration, said the discussion is moot.
“There should be no occasion for the court in this case to consider issues of severability, because as we argue, the minimum coverage provision is fully consistent with Article I of the Constitution,” Kneedler said.
Emphasizing that it is unrealistic to go through the entire bill line by line, Justice Antonin Scalia met with laughter when he asked, “You really want us to go through these 2,700 pages? And do you really expect the court to do that? Or do you expect us to give this function to our law clerks?”
H. Bartow III, who was appointed by the court to argue for striking the mandate and keeping the rest of the bill, stressed that Congress should be able to come up with another way to protect discrimination against people with pre-existing conditions and the other provisions of the law that do not pertain to the individual mandate.
“Even without the minimum coverage provision, there will be a lot of other incentives still to bring young people into the market and to keep them in the market,” he argued.
The three days of arguments ended with Clement taking four minutes to rebut.
“The choice is to give Congress the task of fixing this statute, the residuum of this statute after some of it is struck down, or giving them the task of simply fixing the problem on a clean slate,” he said. “I don’t think that is a close choice.”
The case was submitted, and a ruling is expected in June.