Supreme Court Not Eager to Kill All of Obamacare

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If the Supreme Court strikes down Obamacare's individual mandate, the high court is a little uneasy about wiping away the entire bill, according to some court watchers. The nine justices just finished the hour-and-a-half session on "severability" which is legalese for: What do we do with this bill if we remove one of its main parts? Following the justices' remarks, SCOTUS blog's Kevin Russell said the court "was skeptical that the whole act should fall if the individual mandate is [invalidated]. But there wasn’t any clear indication of how far the Court would go."

Tweets coming in from reporters at the hearing seem to corroborate that view. "Kagan has indicated that if the choice is between leaving half-a-loaf and no loaf, half-a-loaf wins," tweets The Wall Street Journal's Janet Adamy. "Ginsburg: If they must choose between wrecking operation and salvage job, salvage job is more conservative." Stephen Breyer was also reportedly aggressive in challenging states' attorney Paul Clement over what to do with the rest of the bill. Summing it up, the Associated Press reports that "Sonia Sotomayor, Elena Kagan and Ruth Bader Ginsburg - and even conservative Chief Justice John Roberts and Justice Antonin Scalia - seemed open to the idea that the wide-ranging law contains provisions that can be saved - even if the mandate for Americans to have health insurance is struck down."

A few of the bill's features potentially on the chopping block include the so-called guaranteed issue and community rating provisions, which force insurers to cover everyone at a reasonable cost. The government has argued that those should be struck down as well if the mandate is done away with because it could result in insurance companies going bankrupt. According to Russel, it appears that the court was persuaded by the administration's position on this. "It seemed like there wasn’t much question, except from Justice Sotomayor that the community rating and mandatory issue provisions would fail." 

To the point of whether or not the court will do away with the individual mandate, Russell points to more evidence that it's going in that direction. "The fact that the liberals were very engaged, particularly  Justice Kagan, may show that they are very worried that the mandate is going to be held unconstitutional."

This article is from the archive of our partner The Wire.