Baker reports: "The court's conservative members, including possible swing vote Justice Anthony Kennedy, leaned toward invalidating the whole law, while the liberal justices said the court should leave it to Congress to determine how much of the law depends on the mandate."
This artist rendering shows Solicitor General Donald B. Verrilli, Jr. speaking in front of the Supreme Court Justices in Washington, Monday, as the court began three days of arguments on the healthcare law signed by President Obama, 03/27/12. (photo: Dana Verkouteren/AP)
28 March 12
he nine Supreme Court justices were divided Wednesday over whether to strike down all of President Obama's healthcare law if they find that its individual mandate is unconstitutional.
The court's conservative members, including possible swing vote Justice Anthony Kennedy, leaned toward invalidating the whole law, while the liberal justices said the court should leave it to Congress to determine how much of the law depends on the mandate.
Chief Justice John Roberts, another possible swing vote, pressed the attorneys on both sides of the issue about equally.
Arguments about "severability" come a day after the court engaged in two hours of intense debate over whether the insurance mandate violates the Constitution. Five justices Tuesday appeared skeptical that the mandate meets constitutional muster, meaning the debate over whether the rest of the law must also be tossed could come into play.
The court will reconvene Wednesday afternoon for the conclusion of its three days of oral arguments, which will focus on Medicaid portions of the healthcare law.
Deputy Solicitor General Edwin Kneedler said the court would have to strike two other provisions along with the mandate: the requirement that insurers cover anyone who applies and the ban on charging higher prices to customers with preexisting conditions.
Those are two of the law's most politically popular elements, and were often referred to Wednesday as the "heart" of the healthcare law. The government argued that the rest of the law could stand, even after striking the individual mandate.
"My approach would be, if you take out the heart of the statute, the statute's gone," Justice Antonin Scalia said.
Justice Sonia Sotomayor, on the other hand, argued that it would be an act of judicial overreach for the court to decide that Congress would not have passed the slew of unrelated provisions in the healthcare law if it could not have imposed a requirement to buy insurance.
"It's a choice between a wrecking operation … and a salvage job," Justice Ruth Bader Ginsburg said, arguing that the more "conservative" option would be to let Congress decide how to handle the remainder of the law if the individual mandate were struck.
Kennedy and Justice Samuel Alito said the real act of judicial activism would be to impose a risk on insurance companies that Congress did not intend. The mandate was included primarily to bring healthy people into the insurance market, offsetting the cost of requiring insurers to cover all applicants.
The 26 states that filed the healthcare challenge said Congress should toss out the entire law. The court appointed a third party to argue that the mandate can be completely severed without killing the rest of the law.
Medicaid is, legally, a voluntary program operated jointly by states and the federal government. But the states that filed the healthcare suit claimed the new expansion of the program amounts to "coercion."
The healthcare law expands Medicaid eligibility to everyone at or below 133 percent of the federal poverty line. The federal government will pick up all of the added cost for the first few years, but states have to adopt the new eligibility levels if they wish to remain in Medicaid.
The states said the new rules make it effectively impossible for them to exercise their legal right to opt out of the program.
Legal experts on both sides of the healthcare debate were surprised the high court agreed to hear the states' Medicaid claim. The argument was rejected in both of the lower courts that heard it, and both of those courts also ruled that the individual mandate is unconstitutional.
