If the Supreme Court strikes down the health reform law’s mandate to buy insurance, does the rest of the Affordable Care Act survive?
That issue — whether the individual mandate can be severed from the rest of the law — is what the justices focused on in Wednesday morning’s hearing on the Affordable Care Act.
Justice Anthony Kennedy was the leader of the questioning on the ‘‘severability’’ issue, said CNN legal analyst Jeffrey Toobin after the morning session. Kennedy is often considered a swing vote on the court, and his pointed questions about the individual mandate on Tuesday may signal that it’s unlikely to be upheld.
Toobin said after the Wednesday morning hearing that the administration’s case ‘‘still looks like a train wreck.’’
“The entire law is in trouble,’’ he added.
The Scotusblog.com said the ‘‘fact that the liberals were very engaged, particularly Justice [Elena] Kagan, may show that they are very worried that the mandate is going to be held unconstitutional.’’
The attorney for the 26 states that filed suit against the law, Paul Clement, argued against severability. He repeatedly sought to make the case that key insurance regulations — which even the administration agrees would have to be struck down along with the mandate — are central to the functioning of the law’s other major features, the Washington Post reported.
The 11th U.S. Circuit Court of Appeals, based in Atlanta, struck down the Obama health plan’s individual mandate last year, but ruled the rest of the Affordable Care Act could stand.
But Justice Antonin Scalia said Wednesday that if the mandate is struck down, the whole law will have to go, the New York Times reported.
“My approach would be to say that if you take the heart out of the statute,” he said, “the statute’s gone.”
Other justices considered a variety of possible approaches. Justice Ruth Bader Ginsburg called the court’s task, should the key provision fall, a choice between “a wrecking operation” and “a salvage job.”
In the afternoon, the Supreme Court reviewed the health law’s major expansion of the Medicaid program for the poor and disabled. In Georgia, that would mean a projected 650,000 more people added to the Medicaid rolls.
The court’s more conservative justices expressed concern that the Medicaid expansion was unduly coercive to states, the Times reported. The law would give states additional money to expand Medicaid and also add new rules about that coverage.
Kennedy wondered whether Medicaid created accountability problems because the federal government set the rules but the states operated it.
The court’s more liberal justices expressed surprise that the expanded program, financed largely with federal money, was at all questionable on constitutional grounds, the Times said.
The court’s decision on the Affordable Care Act is expected to be announced in late June.
Here’s a New York Times article on the contingency plans –- or lack thereof –- if the mandate is thrown out but the rest of the law is preserved.