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“I smiled a lot,” he said, adding that he hoped the court strikes the whole thing rather than handing Congress the messy job of cleaning up what some justices referred to as “half a loaf.”
“I think we need to start over,” Upton said.
While the outcome remained uncertain, consistently tough questions from the five more conservative justices made Republicans more confident than ever that the law will be history by late June, when the court is expected to deliver its ruling. Shaky performances from the government’s top lawyers, including Solicitor General Donald Verrilli, buoyed the GOP.
And the courtroom crackled whenever likely swing vote Justice Anthony Kennedy spoke. Nobody is taking his vote for granted, but he set a high bar for the government to make its case, and his skeptical questions appeared to unnerve the government’s lawyers. Kennedy expressed deep doubts about the constitutionality of the individual mandate Tuesday, and on Wednesday, he posited that it could be a more extreme use of judicial power to invalidate the individual mandate but leave the rest of the law intact.
Democrats still hope that one or two conservative justices might ultimately be persuaded to uphold most or all of the law, and they warned the court’s credibility as an impartial observer was also on the line.
In the meantime, Congress repeatedly ended up as a punching bag for the most conservative members of the court, while the liberal justices pushed to defer to Congress.
“Don’t you think it’s unrealistic to say, ‘Leave it to Congress’?” Justice Antonin Scalia asked with his trademark sarcasm Wednesday, as the justices wrestled with the question of the law’s severability.
The liberal justices, however, suggested that Congress would have preferred they keep as much of the law as practicable.
Justice Ruth Bader Ginsburg asked why the court should engage in a “wrecking operation” instead of a “salvage job.”
“Half a loaf is better than no loaf,” Justice Elena Kagan suggested.
But “sometimes half a loaf is worse,” Paul Clement countered, arguing for the 26 states suing to overturn the law. Without the mandate, you are left with a “hollow shell.”
If the rest of the law is so uncontroversial, Congress can pass a new law “in a couple of days, and it won’t be a big deal,” Clement suggested to laughter.
Scalia at one point said that if it were up to him, the law would fall if the mandate is struck.
“My approach would say, if you take the heart out of the statute, the statute’s gone,” he said.
Scalia said asking Congress to fix the remainder of the bill struck him as less democratic than striking the whole bill, citing the need for 60 votes in the Senate to overturn the rest of the law. That, he said, was a “gross distortion” of the democratic process.
Scalia ripped into the “Cornhusker kickback” included in the law as just one example of a questionable side provision that makes it hard to determine whether Congress would have passed the larger law absent the mandate. The much-
maligned provision, added in part to secure the vote of Sen. Ben Nelson (D-Neb.), became a symbol of the tense wrangling that accompanied passage of the Senate bill in 2009.