After yesterday’s heartening arguments, today’s arguments carry even more importance, because it seems likely the Court will actually reach the severability question.
If there are political consequences for the Court’s decision on the mandate argued yesterday, there could be even more consequences to today’s arguments. If the law is struck down in its entirety, expect the president to dust off his 2010 State of the Union talking points, which charge the Court with what he calls “judicial activism,” but in reality seem to criticize any court decision that finds a law of his unconstitutional.
Later, in response to Deputy Solicitor General Ed Kneedler’s arguments for the administration, the same justices seemed more inclined to make a judgment striking down the whole law. Justice Scalia answered his own question about how to formulate a rule, suggesting that “if you take the heart out of the statute, the statute is gone.” He framed it as a question of first impression because the Court has never before invalidated the very heart of a law, and dealt with severability in that context.
Justice Kennedy on at least two occasions suggested that going into the law to pick and choose which provisions should survive would actually be a more “awesome” exercise of legislative power than striking down the law as a whole. Justice Scalia illustrated the problem by asking if he (or, more likely, his clerks) should read through all 2700 pages of the law to determine which provisions should stand.
Justice Kagan was firmly in the administration’s camp, calling their position the more textually honest, because of oft-cited findings of the law explicitly linking the individual mandate with community-rating and guaranteed-issue.
Justice Sotomayor had the opposite take from Justice Kennedy, calling taking any other part of the law down with the mandate an exercise of legislative power.
All in all, Justice Alito and Chief Justice Roberts at least seemed open to voting to strike the whole law, and it seems likely that most or all of the law is going to share the fate of the individual mandate.