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Obamacare on Trial: The Next Round of Arguments

8:05 AM, Mar 30, 2012 • By ADAM J. WHITE
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After Tuesday's oral arguments, in which Justice Kennedy posed pleasantly tough questions to Solicitor General Verrilli, it was hard for conservatives not to get excited about the prospects for an imminent Supreme Court decision striking down the individual mandate.

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The next morning's arguments could have only redoubled optimism on the right. The main question before the Court on Wednesday—"severability"—was premised upon the best-case scenario: Imagine that the Court holds the individual mandate unconstitutional. Is the best remedy to nullify just the mandate, or the mandate and a few other provisions ... or Obamacare altogether? It is the stuff that Tea Party dreams are made of.

And in this case, the severability question is marked by many of the same characteristics that complicate debate over the merits of the mandate itself: it largely will turn not on questions of analogous precedent, but rather on matters of deeper principle and the role of the courts in constitutional, republican government. Congress enacted the Affordable Care Act in one piece; its passage depended on logrolling, deal making, and compromise. If one piece—indeed, the central piece—of the Act is eliminated, should the Court leave the rest of the law intact, or should it throw out the entire, comprehensive bill?

Several solutions present themselves, and each could plausibly vindicate the goal of "judicial restraint." The Court could strike down just the mandate, leaving the rest of the law stand. This would avoid judicial nullification of myriad provisions that are themselves constitutional, but at the same time this would effectively enact a version of Obamacare that no congressman actually wants.

Or the Court could strike down not just the mandate, but Obamacare altogether. This would strike the opposite balance: it would avoid the problem of rewriting Obamacare, yet it would also be an act of judicial power reaching far beyond just the unconstitutional mandate. And any middle ground would also implicate both concerns.

In most cases, Congress makes its preference clear by including in the law a "severability clause," which announces that the rest of the law should remain in effect even if one or more individual provisions are struck down. By including a severability clause, the congressmen voting for the bill (and the president signing it) endorse the Court leaving in place the remainder of the law.

But Congress and the president did not include a severability clause in Obamacare.

So in this case, the lawyers arguing on Wednesday each had to appeal to their view of legislative intent. The plaintiffs argued that if the mandate—Obamacare's cornerstone—is struck down, then the entire facade must fall with it. The government had argued on Tuesday that the mandate was a "necessary and proper" adjunct to the guaranteed-issue and "community rating" provisions; it continued that theme on Wednesday by arguing that if the mandate falls, then so must those other two provisions. The Court appointed a third lawyer to argue that even if the mandate is struck down, the entire remainder of Obamacare must remain in effect.

As with Tuesday's arguments, these arguments received excellent coverage from the Supreme Court beat writers, including SCOTUSblog's Lyle Denniston, as well as at Bloomberg's "Health Care at the High Court" blog. And shortly after those arguments concluded, the justices reconvened in the afternoon to consider a separate constitutional challenge to Obamacare, on the question of whether the law violated the Constitution's federalism by threatening to cancel a state's Medicaid funds if the state failed to expand citizens' Medicaid eligibility.

With oral arguments now behind us, we can only await the decision—probably in late June, although given the gravity of the case it could well come later in the summer. In the meantime, veteran Court watchers will counsel against predicting the final outcome based on oral arguments alone; a justice's questions or tenor often do not reflect his true stand on the issue.  

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