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Severability showdown: Justices grapple with law’s viability without a mandate

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Melina Mara THE WASHINGTON POST Moments ago, the Supreme Court wrapped up 90 minutes of oral arguments on “severability,” how much of the Affordable Care Act would have to fall if the individual mandate were to be found unconstitutional. The justices heard three arguments: That the mandate should fall by itself, that it would take down a few provisions with it, or it would take down the entire law.

Those in the Courtroom describe the justices as wary of overturning the entire law, but torn on how, exactly, they could pick and choose which parts of the law would fall should they strike the mandate.

SCOTUSBlog’s mid-argument update, from Kevin Russell, finds hints of concern from liberal justices that the mandate could fall:

Paul Clement is finished. The Court was skeptical that the whole act should fall if the individual mandate is invalid. But there wasn’t any clear indication of how far the Court would go. It seemed like there wasn’t much question, except from Justice Sotomayor that the community rating and mandatory issue provisions would fail, that is the government’s position. The fact that the liberals were very engaged, particularly Justice Kagan, may show that they are very worried that the mandate is going to be held unconstitutional.

Justices Sonia Sotomayor and Ruth Bader Ginsburg suggested that, if they did throw out the mandate, it would be Congress’s responsibility to fix the law - not the Court’s. Via Bloomberg News

“The bottom line is why don’t we let Congress fix it” instead of throwing out the entire law, said Justice Sonia Sotomayor.
“Why make Congress redo those?” Ginsburg said. It would be better to let Congress decide “whether it wants them in or out,” she said.

Key swing vote Justice Anthony Kennedy was reportedly skeptical of this solution. “Kennedy argued it may be more extreme to pick & choose parts of law to overturn than to just strike down the whole thing,” tweets the Washington Examiner’s Philip Klein. He worried, via Kaiser Health News’ Phil Galewitz, that “we may not know the consequences” of keeping the law in place without requiring the purchase of insurance.

Justice Antonin Scalia also showed little faith in Congress’s ability to fix the law, should the Supreme Court strike down only part of it. Here’s Wall Street Journal’s live blog:

Justice Scalia says it’s “unrealistic” to leave it to Congress to figure out what to do with the rest of the law if the insurance mandate is struck down. He suggests it would be better to invalidate the whole thing and let Congress start from scratch. Mr. Kneedler, in response, said such a move would violate principles of judicial restraint.

For his part, Scalia seemed to be the one most sold on Paul Clement’s argument that the entire law would fall alongside the mandate. Others were more skeptical. “Scalia said (near direct quote) “My approach would be to say if you take the heart out of the act the act is gone,” tweets Talking Points Memo’s Brian Beutler.

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