How Much of the Health-Care Law Will the Justices Leave Intact?

By Andrew Cohen

Wednesday's argument over how to split up the health-care law may give some of its supporters hope -- but not much.

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Paul Clement, who argued on behalf of the 26 states challenging the Obama health care law before the Supreme Court, talks to reporters after the third and final day of legal arguments / Reuters

If Congress can do this, United States Supreme Court Justice Antonin Scalia asked Tuesday about the Affordable Care Act's "individual mandate," what can't it do? U.S. Solicitor General Donald Verrilli hemmed and hawed an answer but what he should have said was: If Congress can't do this, Mr. Justice, what can it do? You want a "limiting principle"? I've got your limiting principle right here. Let's agree to limit the scope of the Commerce Clause to only such federal laws: 1) That is designed to save hundreds of billions of dollars, 2) that requires people to plan ahead for the public good, and 3) that has already proven to work on a state level.

Welcome to the world of the law, Supreme Court edition, where after Tuesday's remarkable hearing the five conservative justices appeared eager, or at least willing, to defend an unworkable status quo that rewards people who choose to blow off health insurance coverage knowing that they will be treated anyway if they show up ill at a hospital. Strange, no, that our beloved Constitution would allow Congress to pass a law forcing hospitals to treat patients, even for free, while precluding Congress from forcing people to proactively keep health care costs down by insuring themselves against illnesses which ultimately befall us all?

Even apart from income tax, just think for a moment of all the federal laws that coerce people into doing things they don't want to do. People have to pay licenses and fees to operate businesses. They have to comply with all manner of regulation and administrative oversight. And now the Supreme Court wants to draw a line, over Congressional objection, that says there is some sort of "fundamental" personal right to screw over your friends and neighbors by gambling (backed by the government's guarantee, no less) that you'll have enough cash or credit to pay your medical bills when you get sick without health insurance.

WEDNESDAY MORNING

(Here is the link to Wednesday morning's argument and transcript.)

If Tuesday's health care argument felt like the Battle Hymn of the Republic, Wednesday's argument sounded likeĀ a hospital post-mortem. Lots of gritty details about what to do with the body, lots of practical questions eschewing larger policy points. Having largely convinced most of you that the individual mandate is unconstitutional, attorney Paul Clement argued to the justices on behalf of the law's challengers, let me now try to convince you the the entire law cannot stand without the mandate. It's a version of the same argument the orphan makes after killing her parents.

I will spare you most of the details of this morning's "severability" argument. Here's the essence of the government's position, as stated eloquently (again) by Justice Ruth Bader Ginsburg:

Mr. Clement, there are so many things in this Act that are unquestionably okay. Think you would concede that reauthorizing what is the Indian Healthcare Improvement Act changes to long benefits, why make Congress redo those? I mean it's a question of whether we say everything you do is no good, now start from scratch, or to say, yes, there are many things in here that have nothing to do frankly with the affordable healthcare and there are some that we think it's better to let Congress to decide whether it wants them in or out. So why should we say it's a choice between a wrecking operation, which is what you are requesting, or a salvage job. And the more conservative approach would be salvage rather than throwing out everything.

That's conservative in the "old-school" sense of the word and not in the newfangled sense that has taken hold at the Court. Indeed, what was fascinating about the early session, the first of two on the day, was the discussion between the justices and the lawyers over the meaning of "judicial activism" and "judicial restraint" in the context of the health care law. When Edwin Kneedler, arguing on behalf of the federal government, suggested that it would be an act of judicial restraint to salvage the unoffensive portions of the Care Act, it was Justice Anthony Kennedy, the last best hope for the law, who responded curtly:

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.

You follow the logic? It's a form of judicial restraint to strike down the whole law and require Congress to start from scratch. And it's a form of judicial power to strike down only a portion of the law and allow the rest of it to stand. Congressional intent doesn't matter when it comes to determining whether the mandate is unconstitutional under the Commerce Clause. But Congressional intent matters a whole lot when it comes to determining what to do with the rest of it if the mandate falls. "Well, there is such a thing as legislative intertia, isn't there?" asked Justice Scalia, thus confirming that he still follows the news.

And Justice Samuel Alito? He's another sure vote against the mandate (and, judging by his questions Wednesday, against the entirety of the law). True to form, the man who favors corporations over people, the man who famously equates corporations with people, twice during the morning argument expressed his concern for the insurance industry and the costs it might have to bear if the individual mandate were to fall. I am sure the massive insurance lobby, which fought so hard politically to limit the language of the federal law, is delighted to know that Justice Alito has its back at the Supreme Court. Nothing like a backup plan, right?

The Court's liberals -- and to a lesser extent, Chief Justice John Roberts -- suggested that the Court could refrain from killing off the whole law and thus allow Congress to fix whatever needs to be fixed after the Court's conservatives are through with the individual mandate. Is this the compromise the world has been waiting for from the chief justice? His way of letting the nation know that he doesn't just call strikes for conservative causes and balls for liberal causes? You can see the headline now, right? "Chief Justice Strikes Down Mandate, Spares Rest of Care Act." His apologists could then argue that he's both a leader and a visionary.

To Clement, the chief justice asked:

I mean, a lot of this is reauthorization of appropriations that have been reauthorized for the previous 5 or 10 years and it was just more convenient for Congress to throw it in in the middle of the 2700 pages than to do it separately. I mean, can you really suggest -- I mean, they've cited the Black Lung Benefits Act and those have nothing to do with any of the things we are talking about.

Hardly a ringing endorsement in favor of "severability," I know. But this week it's about the best the law's supporters could hope for. Wouldn't it be ironic if provisions relating to black lung, and Indian health care, and the usual hodgepodge of details that compromise modern legislation, were to ultimately save whatever's left of the Affordable Care Act? And wouldn't it be something if a Court so keen on the notion of judicial restraint, and so concerned about recognizing new rights, were to strike down economic legislation by recognizing a new right of individuals to be free from the responsibility of their own actions and choices?

A SEASON OF WAITING

So now we wait. It is 93 days from today until June 28, likely the last day of the current court term. It's a full season -- a quarter of a year, right in the heart of a presidential campaign year -- and what a period it will be behind the scenes at the Court. Soon, the justices will meet to sort through the rubble of the oral argument. It's likely that only a small percentage of what they heard from the lawyers this week -- a concession here, a point there -- will factor into their decision. More relevant will be the interactions between the justices -- centering around Justice Kennedy, of course -- when it comes time to vote and to write the opinions and dissents.

As he was earlier in the week, Justice Kennedy was careful Wednesday to keep his options open. He called the mandate one of the provisions "which are by hypothesis -- we are not sure -- by hypothesis are in doubt." Again, that isn't much to hang onto if you are in favor of the Act. But it's all Justice Kennedy was willing to give. From Wednesday's argument, he seems clearly against allowing the Care Act to survive without the mandate. So is there any hope that he may uphold the mandate in the first place? That's the question all of the lawyers, and the politicians, and the lobbyists, and the partisans will be wondering for the next 93 days. June 28 reckons to be one mother of a day.

This article available online at:

http://www.theatlantic.com/national/archive/2012/03/how-much-of-the-health-care-law-will-the-justices-leave-intact/255150/