Washington, D.C.—The Supreme Court kicked off its third and final day of oral arguments this morning in the legal challenge against the Patient Protection and Affordable Care Act (ACA) with a contentious debate over what happens to the rest of the health care law if its controversial individual mandate is ruled unconstitutional.
The ACA's challengers, represented by former solicitor general Paul Clement, contended that the individual mandate is not severable from the law's other provisions and that the entire ACA must therefore be nullified. The government, represented by Deputy Solicitor General Edwin Kneedler, argued that if the mandate is struck down only two other ACA provisions must fall with it: the requirement forbidding insurance companies from denying coverage to anyone with a preexisting medical condition and the requirement that insurers enroll anyone who wishes to sign up.
Judging by what I witnessed during today's arguments, the federal government faces a very real risk of the Supreme Court invalidating not just the individual mandate, but the entire ACA as well. Perhaps most notable were the comments of Justice Anthony Kennedy, the likely swing vote on this—and other—questions. Consider this revealing exchange between Kennedy and Deputy Solicitor General Kneedler:
MR. KNEEDLER: We think, as a matter of judicial restraint, limits on equitable remedial power limit this Court to addressing the provision that has been challenged as unconstitutional and anything else that the plaintiff seeks as relief. Here the only -
JUSTICE KENNEDY: But when you say "judicial restraint"… you are echoing the earlier premise that it increases the judicial power if the judiciary strikes down other provisions of the Act. I suggest to you it might be quite the opposite. We would be exercising the judicial power if one Act was—one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended. By reason of this Court, we would have a new regime that Congress did not provide for, did not consider. That, it seems to me, can be argued at least to be a more extreme exercise of judicial power than to strike - than striking the whole.
In other words, Kennedy is worried that it would be a greater act of judicial overreach for the Supreme Court to selectively remove one or two or three provisions from the health care law than it would be for the Court to simply wipe the slate clean and let Congress start crafting health care reform all over again from scratch. It's not difficult to imagine Kennedy's four more conservative colleagues signing on to that argument as a way of voiding the entire ACA.
Justice Antonin Scalia and Justice Samuel Alito, meanwhile, each launched direct attacks on the idea of ACA severability, with Scalia at one point declaring, "My approach would say if you take the heart out of the statute, the statute's gone. That enables Congress to—to do what it wants in—in the usual fashion. And it doesn't inject us into the process of saying: This is good, this is bad, this is good, this is bad."
As usual, Chief Justice John Roberts was more difficult to read, although his statements also suggested that he leans towards striking down the entire ACA rather than selectively severing the individual mandate and other provisions. For example, consider Roberts' response to the government's claim that its severablity argument is consistent with "the legislative intent embodied in the law Congress has actually passed." In response to that, Roberts said:
But the problem is, straight from the title, we have two complementary purposes, patient protection and affordable care. And you can't look at something and say this promotes affordable care, therefore, it's consistent with Congress's intent. Because Congress had a balanced intent. You can't look at another provision and say this promotes patient protection without asking if it's affordable.
So, it seems to me if you ask what is going to promote Congress's purpose, that's just an inquiry that you can't carry out.
Much like yesterday's oral arguments over the constitutionality of the individual mandate, today's arguments over ACA severability won't come as good news to the White House.