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Why the Whole Health Care Law Is in Jeopardy

By Sean Trende - June 27, 2012

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The problem is, once you’ve conceded that the court has to go down this road in some cases, the justices have a much harder time drawing a principled line in the sand as to where they should stop.

Second, and relatedly, having read the transcripts, I don’t see much evidence suggesting that the five justices believed they could decide which pieces to throw out and which to keep. Consider the following colloquy:

JUSTICE ALITO: Well, if that is true, what is the difference between guaranteed-issue and community-rating provisions on the one hand and other provisions that increase costs substantially for insurance companies?

DEPUTY SOLICTOR GENERAL EDWIN KNEEDLER: Congress did not think of those things as balancing insurance companies. Insurance companies are participants in the market for Medicaid and -- and other things.

JUSTICE KENNEDY: But you are saying we have the expertise to make the inquiry you want us to make, i.e., the guaranteed-issue, but not the expertise that Justice Alito’s question suggests we must make.

MR. KNEEDLER: Well --

JUSTICE KENNEDY: I just don’t understand your position.

And so it went. The questions directed at Paul Clement (representing the plaintiffs in the case) didn’t push him at all on the substance, they simply pressed him on exactly what test the court should apply. Again, we can’t know when the justices were playing devil’s advocate, and when they were expressing their “true” views. But the evidence that they won’t sever the law is substantially greater than the evidence that they would uphold the entire thing.

Two arguments are typically presented in response. First, that Chief Justice Roberts is concerned about the court’s credibility. I do think that is the case, but I also think he can read a poll as well as anyone else, and the polling suggests that the American people are at the very least comfortable with the idea of striking down the law in its entirety. While the legal academy might be up in arms, the American people wouldn’t view striking down the law as another Bush v. Gore.

The second argument is that Justice Kennedy wouldn’t want to go down this road. This badly misreads him. Kennedy was typically lumped in with Justice Sandra Day O’Connor as a moderate. Kennedy is a centrist, but in the sense that libertarians come out as centrists on typical political ideology tests. Kennedy is not squishy -- he is heterodox, and he isn’t afraid to author broad opinions taking strong stands. If he thinks the whole law has to go, he’ll vote to knock out the entire law.

At the end of the day, this really is like Kremlinology -- trying to deduce the inner workings of a hermetically sealed institution. There’s substantial uncertainty here. I do think the most likely course of action for the court is striking down the mandate and related insurance provisions, simply because of the tendency to presume severability and the closeness of the question. But it is a close question. 

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Sean Trende is senior elections analyst for RealClearPolitics. He is a co-author of the 2014 Almanac of American Politics and author of The Lost Majority. He can be reached at strende@realclearpolitics.com. Follow him on Twitter @SeanTrende.

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