According to the LA Times’ SCOTUS correspondent, the justices are “poised to strike down” the health care law entirely. There’s quite a photo along with the piece of some of the demonstrators outside the court.
“One way or another, Congress will have to revisit it in toto,” said Justice Antonin Scalia.
Agreeing, Justice Anthony Kennedy said it would be an “extreme proposition” to allow the various insurance regulations to stand after the mandate was struck down.
Meanwhile, the court’s liberal justices argued for restraint. Justice Ruth Bader Ginsburg said the court should do a “salvage job,” not undertake a “wrecking operation.” But she looked to be out-voted.
Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. said they shared the view of Scalia and Kennedy that the law should stand or fall in total. Along with Justice Clarence Thomas, they would have a majority to strike down the entire statute as unconstitutional. (link)
The headline’s a bit of a reach but those two words from Justice Kennedy, the main swing vote on the court, justify it. Yet it wasn’t just the liberal justices that expressed concerns about addressing the law’s other provisions separately:
The dilemma could be captured perfectly in two separate comments by Justice Antonin Scalia — first, that it “just couldn’t be right” that all of the myriad provisions of the law unrelated to the mandate had to fall with it, but, later, that if the Court were to strike out the mandate, “then the statute’s gone.” Much of the lively argument focused on just what role the Court would more properly perform in trying to sort out the consequences of nullifying the requirement that virtually every American have health insurance by the year 2014. (SCOTUS Blog)
Ross Douthat bets on Kennedy going the other way (his post went up before today’s hearings though) in his post about the political ramifications of Obamacare-sans-mandate:
Obviously, eliminating the insurance mandate would create various policy headaches, because the legislation isn’t designed to work without one. (This is presumably why the Obama White House has taken the risky course of arguing that the mandate isn’t severable from the rest of the law.)
But there are a number of potential workarounds available, many of which wouldn’t be seen as such an aggressive imposition on private liberty. My colleague Reed Abelson ran through some of these alternatives on Tuesday, noting that even “some of those who favor the mandate say, at least privately, that they do not believe it is quite the linchpin to the law’s success as the heated rhetoric and flurry of legal briefs might suggest.” The policy difficulties, in other words, might be worth the political advantages of no longer having to defend the mandate in the court of public opinion.
Andrew Sullivan says those workarounds “don’t sound that plausible.”
Noah on the mandate vs. tax distinction here.