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Undoing Obamacare

Apr 9, 2012, Vol. 17, No. 29 • By JEFFREY H. ANDERSON
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A month before President Obama signed Obama-care into law, his secretary of health and human services, Kathleen Sebelius, said, “I think the president remains committed to the notion that we have to have a comprehensive approach, because the pieces of the puzzle are too closely tied to one another.” She added, “Pieces of the puzzle are necessarily tied together if you have a comprehensive approach.” You might say that Obama-care aspires to be like a finely tuned watch—though it is of course a clunky, clacking, often imprecise, congressionally assembled, $2 trillion watch. But it’s comprehensive.

Cartoon of Obama, Pelosi and Biden playing monopoly


Last week, the Supreme Court took up the constitutionality of one of Obamacare’s moving parts. In oral arguments on Tuesday, the central question was whether or not Obamacare’s individual mandate—the requirement that essentially every American purchase government-approved health insurance under penalty of law—exceeds Congress’s power to regulate interstate commerce. As broadly as the Court has construed that power for the past 70 years, it has never before sanctioned, nor has Congress ever before claimed, a power to compel commerce—a power to compel people to buy a product of the federal government’s choosing as a condition of living in the United States.

So one question before the Court is whether to strike down the mandate. But another, addressed in oral arguments on Wednesday, is what on earth the Court should do with the rest of the behemoth legislation if it does strike down the mandate. 

This is no simple matter. It’s not immediately apparent what the principle of judicial restraint requires. The Court would have four basic options: strike down as little as possible (just the mandate); strike down as little as possible within reason (just the mandate and the “community rating” and “guaranteed issue” provisions, which even the Obama administration admits wouldn’t work without the mandate); go through Obamacare piece by piece and strike down everything that appears somehow dependent on the mandate; or avoid that quasilegislative role by voiding the whole act. Of these, only the third is clearly inconsistent with judicial restraint, but none of the four is clearly consistent with it.

The justices’ questioning of counsel on this matter was fascinating. Just two minutes into the arguments, Justice Sonia Sotomayor asked: If “adjust[ing] some of the other provisions” were to prove necessary because the individual mandate was declared unconstitutional, “Why shouldn’t we let Congress do that .  .  . ? What’s wrong with leaving it to—in the hands of the people who should be fixing this, not us?”

Justice Elena Kagan asked, “Is half a loaf better than no loaf?” Answering her own question, she said that “on something like the exchanges, it seems to me a perfect example where half a loaf is better than no loaf. The exchanges will do something. .  .  . They [just] won’t do everything that Congress envisioned.”

Justice Ruth Bader Ginsburg maintained that “the more conservative approach would be [to] salvage [what’s possible] rather than throwing out everything.”

Paul Clement, representing the 26 states that are challenging Obamacare’s constitutionality, responded that “the provisions that have constitutional difficulties or are tied at the hip to those provisions that have the constitutional difficulty are the very heart of this Act. And .  .  . if you look at how they are textually interconnected to the exchanges, which are then connected to the tax credits, which are also connected to the employer mandates, which [are] also connected to some of the revenue offsets, which [are] also connected to Medicaid, if you follow that through, what you end up with at the end of that process is just sort of a hollow shell.” He added that Congress would not “have passed that hollow shell without the heart of the Act.”

Chief Justice John Roberts wasn’t so sure. Congress “would have passed parts of the hollow shell,” he said. “I mean, a lot of this is reauthorization of appropriations that have been reauthorized for the previous 5 or 10 years.”

Justice Anthony Kennedy asked, “I need to know what standard you are asking me to apply. Is it whether as a rational matter separate parts could still function, or does it focus on the intent of the Congress?”

Clement argued that the appropriate standard is a blend—“whether the statute can operate in the manner .  .  . that Congress intended.” He cited another statute that was partially voided by the Court, with the result that “for four decades Congress has tried to fix what’s left of the statute, largely unsuccessfully.”

A bit later, Justice Samuel Alito asked, “What would your fallback position be .  .  .  ?”

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