Politico By Josh Gerstein and Carrie Budoff Brown –
March 28, 2012: The Supreme Court struggled Wednesday with a question that looks increasingly significant after conservative justices battered the individual mandate: Should the rest of President Barack Obama’s health care law stand if the requirement to purchase insurance falls?
Most of the justices appeared opposed to throwing out the entire law, but their views on how much to keep in place were murky, and the divisions between conservatives and liberals were not always as clear cut as they were Tuesday.
The questions showed the justices are wrestling with a real dilemma: Striking the entire health law would be a radical step and could throw the country into an uproar. But they’re not health care experts, and they were clearly worried about the consequences if they pull out pieces of the law and that throws the rest of the health care system into chaos.
Justice Ruth Bader Ginsburg argued that the most legally conservative position is to uphold the law and that the decision on what to do with rest of the law should be left to Congress.
If the justices have to choose between “a wrecking operation and a salvage job, a more conservative approach would be a salvage job,” she said.
Justice Anthony Kennedy, who is viewed as a key swing vote, appeared to align himself with those inclined to throw out the law if the mandate goes.
If the justices leave part of the law in place, “by reason of the court, we would have a new regime that Congress did not provide for, did not consider,” Kennedy said.
He said it would be a “more extreme exercise of judicial power” to do surgery on the legislation — a position endorsed by Justice Antonin Scalia, who said it is “totally unrealistic” to comb through a 2,700-page law.
“My approach would be if you take the heart out of the statute, the statute is gone,” Scalia said.
A lawyer for 26 states seeking to strike down the entire law, Paul Clement, said many of the law’s provisions are tied together. Striking those parts would leave “a hollowed-out shell” not worth saving, Clement argued.
“But [Congress] would have passed part of that hollowed-out shell,” Chief Justice John Roberts replied, citing some uncontroversial provisions in the law.
The issue up for debate Wednesday becomes relevant only if the court decides the mandate is unconstitutional, forcing the justices to consider what other elements of the law might need to go as well.
But after the court’s conservative justices defied expectations by attacking the mandate, the focus of Wednesday’s arguments no longer felt like an academic exercise. The harsh reception Tuesday prompted court watchers to revise their earlier predictions that the mandate was certain to survive, saying it appears to be in more trouble than many had expected.