Having already spent a day considering the legality of the individual mandate, on the third and final day of debates on the Affordable Care Act the justices considered what would happen if they found the mandate unconstitutional.
Again, just as yesterday, the justices seemed split along ideological lines. Four of the justices — Ruth Bader-Ginsberg, Stephen Breyer, Sonia Sotomayor and Elena Kagan — were appointed by Democratic presidents while five — Chief Justice John Roberts, Clarence Thomas, Samuel Alito, Antonin Scalia and Anthony Kennedy — were appointed by Republican presidents.
However, the hope for proponents of the bill is that either Kennedy or Roberts could be a swing vote.
Opponents to the bill argued that should the individual mandate — the heart and most controversial part of President Barack Obama’s health reform law — be overturned, the whole law would have to be struck down. Since the individual mandate requires all people buy insurance or pay a penalty, the argument was that it would be the funding mechanism for a range of other programs.
Overall, even though the future of the individual mandate seems uncertain, the justices seemed reluctant to, as a result of striking down the mandate, declare the whole law and all of its 400-plus provisions unconstitutional.
Some of the justices pointed out the information exchanges as one aspect of the law. Their purpose is — and indeed they are up and running successfully in some areas — to increase information sharing among physicians and hospitals, thus lowering health costs even without the individual mandate.
JUSTICE KAGAN: Is half a loaf better than no loaf? And on something like the exchanges it seems to me a perfect example where half a loaf is better than no loaf. The exchanges will do something.
In regards to the idea that severing any one provision would make the whole law unconstitutional, Scalia pointed to the corn husker kickback as an example instead of the individual mandate:
JUSTICE SCALIA: And you are telling us that the whole statute would fall because the corn husker kickback is bad. That can't be right.
Scalia showed his reluctance — and a little humor — over the idea that they would have to go through and strike the whole law just because the individual mandate is taken away.
JUSTICE SCALIA: You really want us to go through these 2,700 pages?
JUSTICE SCALIA: And do you really expect the Court to do that? Or do you expect us to — to give this function to our law clerks? Is this not totally unrealistic? That we are going to go through this enormous bill item by item and decide each one?
However he later seemed to backtrack:
JUSTICE SCALIA: My approach would say if you take the heart out of the statute, the statute's gone.
This conflict within just one justice mirrors the entire court, which is split over whether or not to strike down the individual mandate and what it means if that should happen. However, if either Kennedy or Roberts votes with the liberal justices to uphold the individual mandate, then Wednesday’s arguments over severability will be moot.
See what was discussed on the second day in court in regards to the individual mandate: Health Law Faces Heavy Scrutiny from Supreme Court.