Obamacare Arguments Lean Against Severability

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.

The justices on both sides seemed skeptical of Paul Clement’s opening arguments for the plaintiffs, asking them to strike down the entire law along with the mandate. When he was prompted by Justice Alito to start arguing his fallback position, he made a solid case that far more than the administration’s set of central provisions actually are tied inextricably to the mandate. Not just community-rating and guaranteed-issue, but also Medicaid, employer mandates, and tax credits, among many other provisions, will be undetermined if left to stand without the mandate. The justices at first seemed unreceptive to his argument that the “shell of the law” left after removing these provisions should fall, with Justices Kennedy and Scalia particularly concerned about how to articulate such a rule.

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 Breyer earlier had illustrated the relative aid of the mandate provision and the rest of the bill by holding up a thin booklet next to a thick one with the remaining provisions of the law. He articulated a “pipe dream” in which the parties all got together to agree on a list of peripheral provision to leave in place. Scalia retorted that they should publish a conference report just like the real legislators in Congress.

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.

Carrie Severino — Carrie Severino is chief counsel and policy director to the Judicial Crisis Network. Until March 2010, she was an Olin/Searle Fellow and a Dean’s Visiting Scholar at Georgetown Law Center. ...