Kennedy: Would leaving parts of ObamaCare in place be more “extreme” than entire repeal? Update: “Plane wreck” for White House?

posted at 12:45 pm on March 28, 2012 by Ed Morrissey

So far there doesn’t appear to have been any fireworks — or more accurately, duds — at the Supreme Court today as there were yesterday.  In part, that’s because the topics under review aren’t as explosive: severability and Medicaid expansion.  That doesn’t mean that the day has been entirely uninteresting, either, as Philip Klein reports for the Washington Examiner:

Justices on the U.S. Supreme Court this morning considered what to do with the rest of President Obama’s national health care law if its individual health insurance mandate is struck down. Though it was difficult to get a clear read on their thinking as they asked tough questions of all sides, the Court seemed open to the possibility of overturning the entire law. …

Deputy Solicitor General Edwin Kneedler, on behalf of the Obama administration, was arguing that only the ban on pre-existing conditions and cap on the cost of policies should be turned down if the mandate was gone. But interestingly, Justice Anthony Kennedy argued this could be seen as more “extreme” than simply striking down the whole law.

Antonin Scalia went back and forth on this, arguing from both perspectives.  He commented that striking down the mandate didn’t necessarily make the rest of the law invalid, comparing it to the Cornhusker Kickback and stating that its removal wouldn’t mean that the rest of the bill couldn’t remain in force.  Later, though, Klein reports that Scalia remarked that his “approach” would be that the overturning of the mandate would have to mean overturning the whole bill.  What seems interesting from these exchanges was that the justices seem to have gotten past the notion of explicit severability and had taken a utilitarian look at whether the consequences of ending the individual mandate necessitated a broader rejection of the PPACA.

And it doesn’t appear that those concerns are limited to the conservative jurists, either:

A court-appointed attorney, Bartow Farr, made the case for preserving the rest of the law if the mandate is found unconstitutional. But he ran into tough questioning from the liberal justices, who pointed to Congressional findings warning about a possible “death spiral” for insurers if they were forced to cover anybody who applied for insurance without healthy people having to be brought into the market.

Oral arguments are a time for what-ifs, so it’s good to keep from predicting outcomes merely from the questions asked.  However, the court seems open to two paths to reject severability — the explicit removal of it from the bill, and the practical consequences of overturning the mandate.  That can’t be good news for the White House.  It’s not as dramatic as yesterday’s events, but still very intriguing.

We’ll update this with more reports and spot analysis as they come in.

Update: Jeffrey Toobin says that the argument today shows that the individual mandate is “doomed,” and he downgrades the situation for the White House to “plane wreck” (via our Headlines):

CNN Senior Legal Analyst Jeff Toobin: “This still looks like a train wreck for the Obama Administration, and it may also be a plane wreck. This entire law is now in serious trouble. It also seems that the individual mandate is doomed. I mean, Anthony Kennedy spent much of this morning talking about if we strike down the individual mandate, how should we handle the rest of the law? Now, it is less clear that they are going to strike down the whole law. There does seem to be some controversy in the court about that. Certainly there are some members of the court, Antonin Scalia, Justice Alito, who want to strike down the entire law, but it seemed almost a foregone conclusion today that they were going to strike down the individual mandate, and the only question is does the whole law go out the window with it?”

Whitfield: “Oh, my goodness. Okay, so I have got about 20 seconds or so left. How might this impact arguments later on this afternoon, Jeff?”

Toobin: “Well, it’s hard to imagine how things could be going much worse for the Obama Administration, but now they’re going to be dealing with the Medicaid portion, and they may decide to get rid of that as well.”

Pass the popcorn!

Update II: Via Ace, the LA Times’ David Savage thinks that the court is poised to take a wrecking ball to the whole PPACA:

The court’s conservatives sounded as though they had determined for themselves that the 2,700-page measure must be declared unconstitutional.

“One way or another, Congress will have to revisit it in toto,” said Justice Antonin Scalia.

Agreeing, Justice Anthony Kennedy said it would be an “extreme proposition” to allow the various insurance regulations to stand after the mandate was struck down.

Meanwhile, the court’s liberal justices argued for restraint. Justice Ruth Bader Ginsburg said the court should do a “salvage job,” not undertake a “wrecking operation.” But she looked to be out-voted.

Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. said they shared the view of Scalia and Kennedy that the law should stand or fall in total. Along with Justice Clarence Thomas, they would have a majority to strike down the entire statute as unconstitutional.

Ace, however, advises caution in his own inimitable style:

One thing is that I don’t trust liberals as far as prognostication. They haughtily dismissed these arguments previously, deciding to not even bother reading or considering the arguments. It would be 8-1 or 7-2 to uphold. These stupid conservatives. Don’t they know they’re so extreme that the more educated versions of them, on the Supreme Court, laugh at their silly ideas?

But now that that cockiness has been rubbished, they’re overreacting the other way, assuming the whole law is gone. Their worlds are spinning, so their bearings are a little off.

That certainly seems to be the case with Toobin this week.  Savage, on the other hand, has a more rational look at the arguments being made.  We’ll see … probably in June.


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Over and over they said that if everyone is in a market, then Congress has the right to regulate it. I haven’t heard anything against that argument. Nothing convincing anyways.

MrX on March 28, 2012 at 4:46 PM

Well, as can be easily demonstrated notwithstanding Justice Kagan’s point about baloney, health insurance is not health care. Ask anyone on Medicare who can’t find a doctor.

And plenty of people participate in the health care market without insurance. Much of what we call insurance amounts to prepayment anyway, and PPACA actually makes that worse by requiring coverage (by plans) of all that entirely predictable preventative stuff.

DrSteve on March 28, 2012 at 5:13 PM

Isn’t that line of argument basically self-serving on the part of the federal government?
Everyone will inevitably become involved in the health care market?
Even if that is the case, why is that the concern of the federal government?
Is it the concern of the federal government because it has to foot the bill for millions of uninsured who can’t pay for the inevitable use of the market themselves?
What is the reason why they can’t pay for it?
Isn’t part of the inflation in health care costs due to federal government involvement? It seems like the feds create the burden and then grant themselves the power to “alleviate” it.

Am I way, way off? Probably.

Nick_Angel on March 28, 2012 at 5:32 PM

Did you not read any of the transcript from yesterday? It’s pretty clear that the mandate has very little to do with making sure that the uninsured cover their own expenses, otherwise they would be allowed to buy catastrophic insurance and let that be that. The mandate is simply about forcing healthy people into a market so they can subsidize everybody else. It forces them to buy a much more expensive policy which covers many things they will probably never need. Why is a healthy 28 year old male forced to purchase a policy that covers mammograms, pre-natal care, drug counseling, etc?

Answer this question: if you are so concerned about picking up the tab for the uninsured would you support letting the uninsured simply purchase a cheaper catastrophic plan that would cover their expenses in a medical emergency?

JohnInCA on March 28, 2012 at 2:58 PM

This is a good point. The “free rider” argument is great from a marketing/PR perspective, but it really has nothing whatsoever to do with the mandate. The same was true in Massachusetts: the mandate was all about the risk pool and not about free riders, despite the rhetoric.

Just Sayin on March 28, 2012 at 5:33 PM

Am I way, way off? Probably.

Nick_Angel on March 28, 2012 at 5:32 PM

Nope. It’s what government does best: “fix” something in a sweeping move without considering possible adverse effects and then come back to fix the fix. The feds messed around in the health care realm and now they have to fix the mess they made in the first place. Problem is, this fix is worse than the mess already in existence.

totherightofthem on March 28, 2012 at 5:42 PM

Why would a Justice be looking for ways to “salvage” a bill??

Legislating from the bench.

KMC1 on March 28, 2012 at 5:49 PM

Why would a Justice be looking for ways to “salvage” a bill??

Legislating from the bench.

Because most legislation is comprised of different–and wholly separate items–it is not unusual for a portion of a bill to be held unconstitutional with the remainder of the bill holding up. It is like a section of a contract being found unenforceable with the remainder of the contract remaining in place.

RedSoxNation on March 28, 2012 at 5:55 PM

NightmareOnKStreet on March 28, 2012 at 4:30 PM

Asking me to explain how a liberal thinks is like trying to explain the thought processes of a toadstool.

How about this? Everything the SC does has both political and historical implications. Historically a liberal may not want to be on the record as having supported the mandate which is obviously a government power grab and vastly enhancing the powers of the already powerful treasury department.Incidentally, increasing government power can work against liberals too if a far right government were ever to take control.The last point may be the excuse for a liberal or two peeling away. I’m NOT saying it will happen but I think it a possibility.

The political aspect then may kick in. Not wanting to be labelled a TOTAL TURNCOAT, the ‘traitor’ may then vote against throwing the whole contract out on the basis of severability reasoning that the entire contract represents social legislation of such import that to kill it on the basis of a “legal technicality” would be against public policy. Thus the justice (or justices) is “covered”. He or she voted against the mandate but not against the entire contract.

BTW this did happen in 2000 when the SC in, in effect, voted to stop the vote counting in Florida-allowing Bush to declare victory. Any one of three decisions the SC made would have stopped the counting. Two decisions were 5-4 but one (not well known but which alone could have stopped the vote counting) was 6-3 when David Souter sided with the conservatives.

MaiDee on March 28, 2012 at 6:02 PM

Isn’t part of the inflation in health care costs due to federal government involvement? It seems like the feds create the burden and then grant themselves the power to “alleviate” it.

Am I way, way off? Probably.

Nick_Angel on March 28, 2012 at 5:32 PM

Not really, the inflated costs simply come from giving everyone coverage. This isn’t a single payer system- from the standpoint of the original architect of Romneycare, the national mandate is basically RomneyCare plus programs geared to bring costs under control over time.

bayam on March 28, 2012 at 6:18 PM

Not really, the inflated costs simply come from giving everyone coverage. This isn’t a single payer system- from the standpoint of the original architect of Romneycare, the national mandate is basically RomneyCare plus programs geared to bring costs under control over time.

bayam on March 28, 2012 at 6:18 PM

Just to clarify, I wasn’t talking about costs related to the implementation of Obamacare, but inflation present in the system before Obamacare was passed. It may not change your answer though.

Nick_Angel on March 28, 2012 at 6:25 PM

…Can anyone clear that up?

NightmareOnKStreet on March 28, 2012 at 4:30 PM

I read that as a prediction that the court would throw the entire law out on a 5-4 vote. I don’t see how they save any of the law if the mandate is thrown out. But I’m no expert.

mbs on March 28, 2012 at 5:28 PM

Thanks mbs, but I still don’t understand why they are debating throwing the whole thing out with the mandate. If they toss the mandate, I thought they had no choice but to throw the entire thing out.

From NY Times article 11-26-2010

Virginia’s attorney general, Kenneth T. Cuccinelli II, a Republican who filed the Richmond lawsuit, argues that if Judge Hudson rejects the insurance requirement he should instantly invalidate the entire act on a nationwide basis.

Mr. Cuccinelli and the plaintiffs in the Florida case, who include attorneys general or governors from 20 states, have emphasized that Congressional bill writers did not include a “severability clause” that would explicitly protect other parts of the sprawling law if certain provisions were struck down.

An earlier version of the legislation, which passed the House last November, included severability language. But that clause did not make it into the Senate version, which ultimately became law. A Democratic aide who helped write the bill characterized the omission as an oversight.

NightmareOnKStreet on March 28, 2012 at 6:26 PM

Bayam. If the govt limits what can be charged doctors will inflate costs elsewhere.Toady

CW on March 28, 2012 at 7:10 PM

A couple of funny things happen when I tell a Doctor I don’t have insurance. The charge usually goes down, and I pay the bill at time of service.

Fighton03 on March 28, 2012 at 1:08 PM

Been to a hospital recently? For the uninsured, the charge actually goes UP. Of course, it would be prima facie illegal in any other industry.

Archivarix on March 28, 2012 at 1:11 PM

I don’t know where you’re getting this. Most hospitals raised their prices in the first place so they wouldn’t get killed when HMOs started demanding across-the-board discounts on all procedures if they wanted any patients from that insurance company.

So if they got wind of a new HMO on the horizon that was known to demand a 20% discount on all charges, they would raise their prices by 20% before the HMO came along.

If you don’t have insurance, then they know you can’t pay the full insurance price. Negotiation is a decent strategy. Another good strategy is to offer a “program” that offers big discounts for uninsured patients. They they can write that off as an expense and at least get a tax deduction.

I’m not buying that prices go up for uninsured patients. I haven’t seen any evidence for that.

tom on March 28, 2012 at 9:03 PM

Been to a hospital recently? For the uninsured, the charge actually goes UP. …
Archivarix on March 28, 2012 at 1:11 PM

That’s a lie.

batterup on March 28, 2012 at 11:26 PM

tom and batterup are just plain ignorant. Hospitals have “list” prices, and the insurance companies “manage” care by negotiating lower prices. So, the bill for the uninsured is MUCH higher. Just check out a statement of benefits. It shows the list price and the discount negotiated by your insurance company that neither you nor your insurance company pays. So, tom and batterup, what’s your excuse?

Al in St. Lou on March 29, 2012 at 12:06 AM

notion of explicit severability

THERE WAS NO SEVERABILITY CLAUSE IN THE BILL. IT WAS STRUCK.

Therefore it’s ‘all or nothing’, so all this garbage about keeping ANY of Obamacare without the individual mandate is utterly improper and delusional. It’s alarming that wasn’t made clear in the SCOTUS chamber (and everywhere else in the punditsphere) the last 3 days.

rayra on March 29, 2012 at 1:23 AM

Andy Levy et al just screwed it all up on Red Eye, too. Jibber jabber about the court being able to allow parts while dismissing others. Completely missing that severability was struck from teh bill and if the individual mandate is ruled unconstitutional then the entire bill MUST be rescinded.

rayra on March 29, 2012 at 3:35 AM

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