Peerless Supreme Court watcher Lyle Denniston has just posted a piece taking stock of today’s argument over the fate of Obamacre without the mandate, and he finds a surprising silver lining for the White House:
The Supreme Court spent 91 minutes Wednesday operating on the assumption that it would strike down the key feature of the new health care law, but may have convinced itself in the end not to do that because of just how hard it would be to decide what to do after that. A common reaction, across the bench, was that the Justices themselves did not want the onerous task of going through the remainder of the entire 2,700 pages of the law and deciding what to keep and what to throw out, and most seemed to think that should be left to Congress. They could not come together, however, on just what task they would send across the street for the lawmakers to perform. The net effect may well have shored up support for the individual insurance mandate itself.
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.” ...
Congress’ capacity to react in a sensible way also came into some question, particularly from Justice Scalia and, in a way, from Justice Anthony M. Kennedy, both of whom seemed to harbor doubts that the lawmakers would be up to the task of working out a new health care law if this one failed, either totally or partially.
Yes, it turns out that health reform is complicated, and killing the mandate at its core might have a serious impact on the rest of the law. Which makes the decision over the mandate’s fate kind of a momentous one, because allowing all those other provisions to crash and burn with the mandate might actually have far reaching consequences, particularly since it’s all but certain that Congress isn’t up to the task of replacing the law with anything else in the way of reform!
It’s good to see that these tangential matters are at least part of the conversation, and that the real world consequences of doing away with the largest social reform since the 1960s — one that will impact one sixth of our economy and millions of Americans — just might play a small role in affecting the final decision. Isn’t it?