Dylan Scott is a GOVERNING staff writer.E-mail: email@example.com
After some interpreted the Supreme Court’s tough questioning of the individual mandate Tuesday as an ominous sign for the provision, the issue of severability (can the rest of the Affordable Care Act stand without the mandate?) had an amplified importance during Wednesday’s oral arguments.
The central question for the court during its morning session was: would Congress have passed the ACA without the individual mandate? In legalese, it is a question of “legislative intent.”
Justice Elena Kagan summarized the issue this way: “Would Congress want half a loaf or no loaf at all?”
The justices appeared primarily concerned with two questions: first, is the court capable of making judgments on what Congress would or would not have done without the mandate? And second, would maintaining the rest of the law (or most of it) have such an adverse affect on the insurance market that it would be better to let Congress start from scratch?
The law’s opponents, represented by former Solicitor General Paul Clement, argued that the mandate is at the core of the ACA and Congress would not have passed the law without it. They therefore asked the court to throw out the entire act.
Justice Antonin Scalia, largely viewed as opposed to the mandate’s constitutionality after yesterday’s arguments, seemed initially skeptical of Clement’s argument that, because the law would not have been passed the bill without the mandate, the rest should be removed as well. He noted that there were many peripheral provisions that were enacted to gain votes, but aren’t central to the law’s purpose. He asked rhetorically if Congress would have wanted the whole act to fail without those secondary provisions. “That can’t be right,” Scalia said.
Justice Anthony Kennedy, seen as the most important swing vote on the court, pushed Clement to provide a test to determine legislative intent and the mandate’s affect on the rest of the law. He gave a hypothetical where two pieces of legislation are passed together for political reasons but are practically unrelated. Would Congress want both to be nullified if one was found unconstitutional? “I still don’t know what that test is,” Kennedy said.
Clement countered that the mandate was so crucial to other provisions in the law (such as guaranteed issue, community rating, health insurance exchanges, tax subsidies and employer mandates) that those reforms couldn’t function without it.
Deputy Solicitor General Edwin Kneedler defended the Obama administration’s position: two market reforms (those that prevent insurers from denying coverage for people with preexisting conditions and prevent insurers from charging such people higher premiums) are not severable and should also be discarded if the mandate is struck down. The rest of the law, however, should stand, he said.
Scalia took up the opponents' position during Kneedler's argument, wondering if it was “unrealistic to leave it to Congress” to fix the law, given current political realities. “If you take out the heart of the statue, the statute is gone,” he said. That approach “doesn’t inject us into the process to decide that this is good and this is bad.”
Kennedy also pushed Kneedler to address Clement’s arguments, inquiring if leaving other portions of the ACA without the mandate “would lead to a new risk that Congress never intended” if insurance premiums were to increase, as the opposing parties assert. “Can we say Congress intended that kind of risk?” Kennedy asked.
Later, Kennedy said that Congress might have passed the law’s other market reforms “based on the assumption that costs could be lowered” by the mandate.
Kneedler argued that there was a sharp dividing line between guaranteed issue and community rating (which are inextricably linked to the mandate) and other reforms. Chief Justice John Roberts probed for a firmer definition: “Where is that sharp line?” he repeated.
On the other side, Justice Sonia Sotomayor, considered a likely supporter of the mandate, said that the court making decisions about which parts of legislation should stand and which parts should not (rather than simply striking the mandate and leaving the rest to Congress) would grant “more power to the court” than has been recognized in the past.
Kagan, another expected supporter, characterized that action as a “revolution” of the court’s authority.
A court-appointed attorney, H. Bartow Farr, took a third stance: the individual mandate is completely severable from the rest of the ACA, and the remainder of the law can continue without it. Many of the arguments from both sides were repeated by the justices during Farr’s argument.
If the court upholds the mandate, the severability question is moot. A decision is not expected until the end of the June, the conclusion of the court’s current term.
Below is the transcript from Wednesday morning's hearing.