During three days of oral arguments about Obamacare at the Supreme Court this week, legal analysts were at pains to predict which way each justice was leaning based on his or her line of questioning. For all but the most experienced court watchers, this seems like an exercise in futility: Justices may be just as likely to question an attorney’s point in the hopes of eliciting a stronger case for it as they are to seek to poke holes in it. I’ll just stick to the prediction I, like many others, made when the first legal challenges were filed: This case will come down to Justice Anthony Kennedy, the court’s most frequent swing vote, in what most likely will be a 5-4 decision.
If the mandate is struck down, how much of the rest of Obamacare should go with it?
Total Voters: 369
Much of the analysis during Wednesday’s arguments focused on the justices’ debate about “severability”: how much of the law ought to survive if the individual mandate is struck down. The 11th Circuit here in Atlanta decided to strike down only the mandate and keep all else intact. Attorneys for the states challenging the law argued none of the law can stand if the mandate falls, because it was the central component of the law: The other provisions don’t work without he mandate, and Congress wouldn’t have passed the law without it. The government’s attorneys argued that only a couple of other provisions — chiefly, the ones covering pre-existing conditions and “community rating,” which holds that insurers can’t charge different premiums based on certain behaviors — should fall in that case because they would severely distort the insurance market absent the mandate, while the rest should stand. (Neither side took the 11th Circuit’s position, so the Supreme Court had to assign another attorney to argue that position.)
Some analysts seemed to think the line of questioning itself, predicated on the dismissal of the mandate, indicated the mandate was in trouble. I don’t think that’s necessarily the case: The only way to argue about severability is to assume the mandate is struck down. If it’s not, the point is moot, but the justices had to hear arguments about what to do in the event they do strike it down.
An interesting argument centered on the idea of judicial restraint: Does it indicate more restraint to leave as much of the law intact as possible, as the liberal justices argued? Or would the court display more restraint to strike it down in total — thereby avoiding potentially changing Congress’ intent — and let Congress start over with a blank canvas, as the conservative justices argued?
That’s a philosophical point, and there are practical considerations here as well. Would Obamacare minus only the mandate be workable? Even if community rating and pre-existing conditions provisions also fall, would other elements of the law such as the exchanges and the Medicaid expansion still make sense? Is Congress more likely to act if it has to try to fix a broken law, or if it gets to start over?
So, here’s this week’s Poll Position: If the mandate is struck down, how much of the rest of Obamacare should the justices throw out with it? Note that I am not asking you to predict what the court will do, but rather what you think should be done.
See the choices and vote in the nearby poll and explain your thoughts in the comments thread.
– By Kyle Wingfield