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Justices Consider Whether Health Law Is Viable Without Mandate

Justices Consider Whether Health Law Is Viable Without Mandate

By Erin McPike - March 28, 2012

On the heels of Tuesday's arguments at the Supreme Court, which indicated that a majority of justices doubt the constitutionality of a key provision in the new health care law, the states challenging "Obamacare" made the case Wednesday that the entire law must be struck down.

But that argument met with equal skepticism from the court’s members, nearly all of whom said that some parts of the massive reform law were not germane to the provision in question -- the mandate that Americans purchase health insurance or pay a penalty -- and did not need to be touched.

Paul Clement, representing the 26 states challenging Obamacare, asserted that without a mandate forcing people into the insurance market, the cost of premiums would “skyrocket.”

Justice Sonia Sotomayor interrupted him to point out that fixing the cost is not in the court’s purview -- and that such a concern is Congress’ to address. Ironically, Sotomayor -- who came under fire during her 2010 nomination hearings for having once said that appellate courts make policy -- chided Clement for intimating that the high court should guide Congress toward one fix over another in the absence of a mandate, effectively giving more power to the justices than they rightly have.

But one day after legal analysts noted the conservative justices’ pronounced skepticism of the individual mandate, those same justices seemed taken aback by the suggestion that the whole law should be undone without the targeted provision.

Antonin Scalia, for one, pointed to the “Cornhusker Kickback,” a hotly contested payment sweetener initially inserted into the Senate version of the bill to secure the vote of Nebraska’s Ben Nelson: “You are telling us that the whole statute would fall because the Cornhusker Kickback is bad. That can't be right.”

Clement disagreed, saying the mandate “is essential to the operation of exchanges,” which the law directs states to set up in order to create competition among insurance providers.

Elena Kagan, a liberal member of the court who is thought to be in favor of upholding the mandate, needled Clement on the point, noting that the state of Utah has a health care system in place that operates with an exchange but without a mandate.

“Is half a loaf better than no loaf?” she 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.”

Ruth Bader Ginsburg elaborated on that point: “Why should we say it's a choice between a wrecking operation, which is what you are requesting, or a salvage job?” she asked. “And the more conservative approach would be salvage rather than throwing out everything.”

Chief Justice John Roberts and the so-called swing justice, Anthony Kennedy, piled on -- pointing to other measures inserted into the bill that could stand alone, leading Clement to concede that, yes, some measures can stand.

But when Deputy Solicitor General Edwin Kneedler, who argued on behalf of the federal government, made his case for keeping the bulk of the law regardless of the mandate’s fate, Scalia was equally tough.

“There is no way that this court's decision is not going to distort the congressional process,” he said. “Whether we strike it all down or leave some of it in place, the congressional process will never be the same. One way or another, Congress is going to have to reconsider this, and why isn't it better to have them reconsider it [all] . . . rather than having some things already in the law, which you have to eliminate before you can move on to consider everything on balance?”

The court broke into laughter a handful of times when the justices asked Kneedler if they should go through all of the law’s 2,700 pages -- or give the task to their clerks -- to determine every single piece that could remain intact. 

Erin McPike is a national political reporter for RealClearPolitics. She can be reached at emcpike@realclearpolitics.com. Follow her on Twitter @ErinMcPike.

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