The Supreme Court wrestled this morning with what Congress would want it to do if it strikes down the individual mandate at the heart of President Barack Obama’s health care overhaul — keep “half a loaf” in place, or nix the whole bill.
Justice Anthony Kennedy, likely the pivotal vote in the broader case, worried that striking down only the individual mandate could have broader effects than striking down the entire bill, which includes prohibitions on discriminating against pre-existing conditions and provisions allowing children to stay on their parents’ insurance until age 26.
“We would be exercising the judicial power ... to impose a risk on insurers that Congress never intended,” he said, positing that doing so would be “more extreme than to strike it in the whole.”
The government argued that only two provisions, including the pre-existing condition language, would need to be struck and argued that the broader bill, including the insurance exchanges, subsidies, taxes, Medicaid expansion, Medicare cuts and the like should stand.
Striking the whole law would force the government to unwind millions of transactions that have already taken place under Medicare and throw off the insurance rolls 2.5 million people who have already taken advantage of a ban on pre-existing conditions for children and allowing children to stay on their parents’ plans.
Justice Ruth Bader Ginsburg asked why the court should engage in a “wrecking operation” instead of a “salvage job,” suggesting that the more conservative approach would be to leave much of the rest of the bill intact.
“Half a loaf is better than no loaf,” suggested Justice Elena Kagan.
But “sometimes half a loaf is worse,” countered Paul Clement, arguing for the 26 states suing to overturn the law. Without the mandate, which he called the heart of the bill, you are left with a “hollow shell.”
Justice Sonia Sotomayor, however, said striking the law in its entirety instead of taking out only the provisions directly tied to the individual mandate could amount to a judicial overreach.
“Why don’t we let Congress decide?” she asked, suggesting that Congress could fix the law as it sees fit.
But Clement said Congress would have a task either way. The Supreme Court would either give them the task of fixing the law or “fixing health care,” suggesting the latter would be preferable.
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.
Justice Antonin Scalia at one point said that if it were up to him, the law would fall if the mandate is struck — essentially concurring with Clement.
“My approach would be ... if you take the heart out ... it’s gone,” Scalia 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.
“Don’t you think it’s unrealistic to say, ‘Leave it to Congress’?” he asked.
Scalia also said it wasn’t certain what Congressional intent was without the mandate attached. “Once you cut the guts out of it, who knows?”