This morning was argument on severability, meaning what will happen to the remainder of Obamacare if the mandate is held to be unconstitutional.
Via Lyle Denniston of ScotusBlog, that dilemma may have some of the Justices rethinking their position on the mandate:
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 did 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 Antonion 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.” Much of the lively argument focused on just what role the Court would more properly perform in trying to sort out the consequences of nullifying the requirement that virtually every American have health insurance by the year 2014.
Update: Transcript. Video h/t HotAir:
Not sure I agree with Toobin. The whole point of discussing severability is on the assumption that the mandate is stricken; if the mandate survives you never get to serverability. So by phrasing questions assuming the mandate is stricken, Kennedy and others simply were putting it in context, not necessarily expressing a view on the mandate.
Update: The portion of the appeals few have focused on is the challenge to the expansion of Medicaid which, the states argue, would bankrupt them. Could this be the sleeper argument that dooms another part of Obamacare? Via Lyle Denniston:
Unless a closing oration by a top government lawyer stirs some real sympathy for the poor, the new health care law’s broad expansion of the Medicaid program that serves the needy may be sacrificed to a historic expression of judicial sympathy for states’ rights. It probably would require the Court to be really bold, to strike down a program passed by Congress under its spending power, and to do so for the first time in 76 years, but the temptation was very much in evidence in the final round of the Court’s hearings this week on the Affordable Care Act. It probably would be done by a 5-4 vote.
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Comments
So as long as you pass something so monstrous as to make it incomprehensible it becomes constitutional because the court can’t figure it out?
Came to say that.
So…the “smartest” legal minds in the country can’t sort it out, so they farm it out to the idiots who created the mess to sort it out? Sheesh, we’re screwed.
……unless it was a rhetorical expression of, “You gotta be kidding me. What the hell were you thinking?”
It seems to me that the Dems deliberately played chicken with SCOTUS. The severability clause that is almost always in this type of legislation was left out on purpose. It was no oversight.
Perhaps, foreseeing that there would be an inevitable constitutional challenge to the mandate, they figured that they could count on the court’s distaste for being responsible for scrapping the entire reform package to nudge them toward upholding.
If the Dems played chicken and decided to hold everything in the bill hostage to the mandate, I hope SCOTUS grows some gonads and concludes: “Your doing, not ours, if the entire bill falls because of this.”
Well, maybe Obama’s little bitch-slap at the SOTU over Citizens United will stimulate the growth hormone in question.
In essence, they’re asking the SCOTUS to do the “dirty work” by making part(s) of the bill “legit”….even if the mandate is stricken. They’re hoping that SCOTUS becomes legislatures and salvage the bill.
If they find this monster constitutional, they will cease to be the third branch of our government. The will be no more than a rubber stamp office.
“We have to wait till June so you can find out what is in and out”
Are you trying to depress us, Professor?
Would it be possible that the government made something so complicated and full of intertwined, legitimately constitutional things as to force the court to take the unconstitutional parts along for the ride?
Is the court really so afraid of asking Congress to repass the constitutional parts that it won’t simply throw the law out? If they are so necessary and proper, the Congress should have no trouble re-passing them.
ncfoot beat me to it. It’s a sad day for the constitution and the principles of constitutional interpretation that a blatantly unconstitutional part of a statute becomes law because the rest of the statute is so tangled.
It would seem to me that the legal rationale for this would be far more incomprehensible than Obamacare itself.
1. ncfoot beat me to it too.
Pelosi: “We have to pass the bill so you can find out what is in it”
SCOTUS(?): “We can’t figure out what’s in it, so the bill is Constitutional.”
2. If the issue of complexity in government is not dealt with, sooner or later things will grind to a halt or collapse. We’re not just talking about bureaucracy anymore: we’re talking about bureaucracy with computers.
3. As of this writing, the Intrade probability that the Court will strike the individual mandate has risen to 60%+.
Intrade probability is up to 70%: double what it was for most of this year.
The doubling occurred after Intrade speculators watched the administration in action in front of SCOTUS. Now imagine the same level of competence in all the negotiations that are taking place with allies, opponents, and enemies large and small… 🙁
I just can’t see that big of a punt on this issue, especially after Kennedy’s remark(s) yesterday about the (paraphrase) “fundamental change in relationship between an individual and the government.” That, to me, reads as “unconstitutional” and that’s way too big to just shine on because of the severability problem. I mean, would this be the first time the court told congress, “You made your bed, now lie in it”?
Agree declining to strike the mandate because severability is too big a pain to wrestle with would be a HUGE “punt.”
The problem with severability (IMO) is no one on the Court is really qualified to judge the economics of the statute without the mandate. It’s been observed many times in many places that the monstrosity cannot possibly survive if there’s no mandate – no ability to price insurance based on risk, no right to decline coverage, no right to limit coverage for pre-existing conditions … no one would buy insurance until they were sick. Problem is, Judges really aren’t qualified (they may have the power to, but not the training) to pass on those questions.
Legal concepts about severability have been designed to preserve legislation despite legislative error / overreach. IMO, would’ve been far better to establish the opposite rule from the start – – – if any of it’s wrong, you have to re-think the whole thing. Legislators would be more attentive to their work & Courts would be less involved in “construing law by making it up.”
“Legal concepts about severability have been designed to preserve legislation despite legislative error / overreach. IMO, would’ve been far better to establish the opposite rule from the start – – – if any of it’s wrong, you have to re-think the whole thing. Legislators would be more attentive to their work & Courts would be less involved in ‘construing law by making it up.'”
Definitely agree. Perhaps it could have been called the “Clean Law Precedent”, somewhat akin to the Clean Air Act. 🙂 Or maybe the “One Rotten Apple Rule”?
It would certainly put the brakes on judicial activism.
So, are they saying it’s just too hard to do their job? WTH are we paying them for if they can’t sort out this onerous law?
It sounds to me like at least Kennedy and Scalia were arguing to toss the whole thing. Phillip Klein had a quick report:
God love Scalia bringing up the Cornhusker Kickback. Win, lose or draw here, reading this opinion is going to be a joy.
What would make my heart sing, at least for a moment, is for one of them to bring up Pelosi’s “We have to pass the bill before we can see what’s in the bill.” insanity.
As a side note on that, I know it won’t force the lefty justices to change their minds, but it sure will make them look like the ideological buffoons that they are for opining in favor of legislation handled the way this was.
And someone please tell me again why Kagan gets a vote in this.
I think it was generally concede that a universal scheme like this without a mandate was unworkable, therefore the congress did not make the law severable. To strike down the mandate would be like requiring Americans to buy a car, but not be allowed to have an engine in it. A giant mistake, thus the law must go in its entirety. The 5 constitutionalists on the court agreed on this.
I would hope that 3000 pages is not a limiting factor or a case of too big too fail.
It seems other analysts have a reached a different conclusion. Toobin, for example, downgraded the Obama administration’s situation from train wreck to plane wreck after this morning’s arguments.
http://hotair.com/archives/2012/03/28/kennedy-would-leaving-parts-of-obamacare-in-place-be-more-extreme-than-entire-repeal/
Reid intentionally deleted the severability clause. He wanted the law to live or die on the mandate. If the court rules because of this, the Constitution no longer has any meaning. Just make all legislation 2700 pages long to get around it.
How can the court not see how the rats rolled the dice by leaving out severability? The fact that the cornhusker kickback was mentioned demonstrates they are well aware of the nuances of the dirty way in which this passed, and they would all have to be brain-dead to have missed Pelosi’s catchy little phrase about having to pass it to know what’s in it. Perhaps that will come back to haunt in her some form of justification for tossing the whole thing, such as, “Well, you didn’t read it first, either, so why should we? You didn’t make it severable, so why should we do your job of reading this first? Start over.”
Harry and Nancy rolled the dice. Does that mean the court then has to, also?
“God love Scalia bringing up the Cornhusker Kickback. Win, lose or draw here, reading this opinion is going to be a joy.”
I just have to say, Justice Scalia is Newt’s favorite.
Rush said in his opening that apparently the Democrats won’t care if this is struck down. President Obama wanted single payor to begin with.
If it’s struck down, it’s a political disaster for the rats and The Won. This postulating from the rats that a loss is fine for Obama’s prospects is just a diversion from what’s going on inside the court right now. It’s the same shuck and jive, bob and weave back-pedaling we always see. None of them took this position before oral arguments started looking not so good for their side. If the court decides in favor of the mandate, they will tout it as the greatest achievement in the last 100 years and elevate Obama back to Messiah status. They’re just trying to control the message like they always do, while the ‘pubs sit on their hands like they always do. Nothing new here, move along, folks.
Don’t be fooled by the rats and their handmaidens in the media. A ‘lose’ on this is a huge blow against them politically and against their agenda.
[quote]Not sure I agree with Toobin. The whole point of discussing severability is on the assumption that the mandate is stricken; if the mandate survives you never get to serverability. So by phrasing questions assuming the mandate is stricken, Kennedy and others simply were putting it in context, not necessarily expressing a view on the mandate.[/quote]
Sigh. This was my take, too, alas. I am very very nervous at the way Dems from Carville to Harry Reid are starting to bluster about how great a Supreme rejection of the mandate/health care monstrosity would be for Obama. Sure, they’re probably just trying to cover their bases (in at least two senses of the term), but I think it’s important that conservatives not put too much stock in this ruling. It’s best if it dies with the Supremes, of course, cleaner, neater, more final, but it’s not going to make one tiny bit of difference to me in terms of my view of it and my continued insistence that it be repealed.
Don’t let them buffalo you. This is the usual spin. If Obamacare is tossed, it’s not good for Obama politically. He will then look like he was doing exactly what he was doing – wrongfully making the biggest power grab in the history of this country and trying to ram it down our throats.
What would be sweet is to also see that same public opinion redound to Mittens as well. 🙂
Ha, now all we need is a candidate who can make this crystal clear. Not that we’ll get it at this rate. 🙁
“What would be sweet is to also see that same public opinion redound to Mittens as well.”
Yes, it needs to happen. I’ve noticed his silence during these hearings.
I’d have to go back and look to be sure, but I don’t think that Justice Kennedy inserted the term “federal” when he spoke of the mandate fundamentally changing the individual’s relationship with “government”.
Heh. 🙂
Tweets by Jamie Dupree, reporter for Cox Radio from inside the Supreme Court
https://twitter.com/#!/jamiedupree
Kennedy argued it might be a “more extreme exercise of judicial power” to leave some of the law than strike it all
Kennedy’s right. Leaving any of it puts the court in the position of being the arbitrator and legislator. That’s more extreme than simply saying, “This mandate doesn’t fly. The Act isn’t severable, so you’re done – start over or do nothing or whatever you want to about it.”
I certainly don’t purport to have a clue as to what Kennedy is thinking or which way he will go, but my heart is encouraged by the remark. Was it a message to the lefties on the court and their clerks to not “go there” because he’s not going to “go there” with them? I don’t know. One can hope.
Yes, I heard that exchange. I was surprised to find that Kennedy seemed to be resisting taking a scalpel to the statute. I think it all gets chucked.
I think it was one of your other posts in which you said you were in court today or listened to the entire discussion? If I don’t have that right, please correct me. If you were indeed there or heard it all, I’d love to get your objective, overall take on today’s discussions. For instance, was Kennedy generally resisting taking a scalpel to the entire mess because of Medicaid only, or was he simply noticing the double-edged sword of judicial activism?
As an aside, congress can pass emergency spending to continue funding medicaid. We had Medicaid before Obamacare after all, so it’s obviously not dependent on Obamacare to exist. Duh. The whole, “Poor people will die” if this is tossed because medicaid would come to a crashing halt is just a canard designed to prey on the grossly ignorant and get their votes.
I did not hear the Medicaid argument, which was last. On severability, Kennedy said (I’m paraphrasing, do not have the transcript) that going through a complex statute, after the heart was stricken, to determine what remains and what must go, would be more in the nature of judicial legislation than would be striking the whole thing and letting Congress make its own decisions about what should survive. He and Scalia pointed to the numerous related and unrelated components of the bill and all of the legislative logrolling that went into producing the whole. One or the other of the said, what if we sever a part of the legislation that would not have passed if not attached to the whole?
Thank you.
That last point you mention seems very foreboding for the government’s side.
I wouldn’t be so sure as to what Kennedy finds…
And many are shaking their heads at the arguments posed by different justices of teh Supreme Court in general.
This is how high level civil debate is conducted, peering into and probing standpoints held by your opponent doesn’t necessarily mean you concede to whole cloth acceptance of their argument.
In today’s uncivilized 24 hour news cycle its much easier to just refudiate and walk away.
Scalia just told Farr that if the whole bill goes down then Congress would have the greatest flexibility to decide what to do with the problem instead of the court deciding which provisions to keep or drop. From his lips to Kennedys ears (please God).
Amen.
[…] Jacobson at Legal Insurrection weighs in on Toobin’s assessment: Not sure I agree with Toobin. The whole point of discussing […]
Throw out the mandate, punt on the severability and throw it back on Congress. Without the mandate, health insurance costs will skyrocket. If the Dems lose the mandate, Obama is screwed in a big big way because he no longer can get a revision through Congress. If they decide to go ahead with it, then the Dems will get creamed in the general.
The House and Senate rats get creamed in the general either way, as I see it. If they lose Obamacare, they get a beatdown for causing all this expense and trouble for something that was unconstitutional and that they didn’t even read and rushed through in the middle of the night with chicanery and all manner of skullduggery. If they prevail, they get a beatdown in order to take the teeth out of it or even get it repealed.
That seems to be where this is heading. Who would have believed Obama’s “greatest victory” would cause the Dems to lose control of the WH and Congress? But that’s what could happen. So much for the angry Republican primaries – once the country focuses on the 2 candidates, then I believe Obama will get beat.
Yes. The Won is going to need an army of Trayvon Martins to get re-elected if he loses his “Signature” legislation as being unconstitutional.
It would be nice if some entity with the right sources would fire up its calculators and come up with a figure on how much this little Obamacare adventure has cost the taxpayers, not just for getting the legislation passed but to the public in real dollars pertaining to jobs not created/loss of income tax revenue, unemployment costs, increase in medical costs and premiums, losses of coverage, costs to business, modeling and analyses, etc..
If ObamaCare is stricken…
WE’RE ALL GOING TO DIE!
…er…well…a lot of us-
Certainly ALL the children will.
-Already started (CNN)
Question 1: Would it help to reprint the bill in 8 pt type to get it down to 1600 pages?
Question 2: Do Supreme Court robes have hoodies?
i think they really don’t care about severability. scalia himself stated he is only concerned on what’s easy for him.
i expect them to rule against severability. the thing is just too damn big and they don’t know what’s in it.
wish sotomeyer would stop explicitly making the case for the governemnt. it’s embarrassing her, the court, and this regime.
although it is transparent
Justice Scalia said that? In those words? Or what?
How do they “rule against severability” when there is no severability clause nor is it before the court? It seems to me it’s just a “silent” aspect or impact or operative conclusion to tossing the mandate that had to be voiced.
Please explain. I’m confuzzed now.
That would be in the “penumbra” of Obamacare. (Hey, if they can find on in the Constitution, certainly they can find one here…)
This is turning out to be a disastrous week for Obama. I’ll bet his favorability ratings take a dive. The panic will be setting in the Democrats here soon. Get ready for an avalanche of Dem dirty tricks.
Obama’s favorability ratings won’t dive unless and until the GOP candidate takes him to task for who he is. People supposedly find him “likable” (a thing I find unfathomable), so we need someone who will bring out that petty, petulant, condescending, nasty, mean-spirited asshat we all know he is and that we’ve seen glimpses of for at least four years.
(um, Prof, can I say “asshat” on your blog?)
Yes, and how can Mr. Romneycare take him to task? Mittens is uniquely unable and out of position to take Obama to task for this Epic Failure (just one of several reasons the slimestream media want him to be the GOP candidate).
Please refresh my memory. When did they ever cease with the dirty tricks such that we would now see them start up again?
I do not know what the Supreme Court will do…but the Democrats are definitely spinning!
I listened to the argument today. By my count, all four of the conservatives who spoke (Thomas never does) were really resistant to the idea the they should plow through this massive statute and try to figure out what can be salvaged after its heart is cut out. I think the whole thing is going to be stricken.
So you’re including Justice Kennedy in the four who seem to think they shouldn’t plow through the bill?
In addition to the unconstitutionality of the mandate, perhaps they recognize it as the gambit it is.
If his questions today are an indication of his thinking, Kennedy is struggling with whether they should try to salvage parts of a bill when the heart is gone, and if so, how. Aside from Scalia, he was strongest today against severability. The Qs of Roberts and Alito also were also questioning how they could sever any part.
When Scalia asked the gov’t attorney whether he was supposed to review a bill of this size to find what was salvaged, the attorney bobbed and weaved. Roberts interrupted him and asked him to respond to Scalia’s question.
Alito asked what happens to the ins industry if they lose the mandate but still are forced to cover all preexisting conditions. The answer was–its not the court’s concern–and he did not seem to accept that.
The only Q I heard from a conservative indicating he might be leaning to severing was from Scalia early on, but his later remarks made it clear (to my ears) that he is a No on severability where the heart of the bill in question is stricken.
So the government’s answer is that it’s not the court’s concern when the question asked pointedly demonstrates how deeply flawed the remnants of the bill would be without the mandate. I hope Justice Kennedy found that reply helpful and made a careful mental note of that response. It was as good as saying, “You can’t sever the bill from the mandate. You can’t carve it up.” It’s nice when the opposition makes your point for you so nicely.
Thanks for the info.
Listening late to the audio: Did Breyer and Kagan really say or imply that the constitutionality of a federal law could turn, not on the explicit powers granted under the law, but on whether the exercise of those powers probably would be “reasonable” under another statute (Administrative Procedures Act)?
Has the government even argued their position as justified under that act, or was this another helping hand/hint from the lefty justices?
“Did Breyer and Kagan really say or imply that the constitutionality of a federal law could turn, not on the explicit powers granted under the law, but on whether the exercise of those powers probably would be “reasonable” under another statute (Administrative Procedures Act)?”
– – –
Not really. Clement was arguing that the Medicare expansion was being shoved down the states’ throats via coercion. (Remember, “do this new thing or we’ll yank ALL of your federal Medicare money.”) Breyer was trying to argue that BHO and Sebilious couldn’t make such a threat – that they could only withhold money that was somehow related to the new program – because to threaten more, or to actually withhold unrelated dollars, could never survive the APA’s requirement that agency action must be “reasonable”.
Clement pointed to Sebilious’s letter to Arizona (which was in the record, thank goodness) in which she explicitly makes the threat that Breyer claims she can’t make.
Breyer’s essential point was, boy, you sure must mistrust government. Clement’s tacit response (which Scalia humorously hinted at) was, no, just THIS government. After that whole exchange, Breyer was obviously pissed off.
But then, Breyer is a supercilious ass.
Denniston leans liberal. He did the same spin on day one he’s doing the same today. I don’t buy into his spin. We’ll find out soon. Since the dems are in panic mode I’ll assume they don’t feel confident. Let’s hope I’m right
Dear me!! It is clear that no one except the gnomes of the Capitol really knows what is in the bill. Everyone knows what Nancy Pelosi had to say about the bill.
If the Congress could not be bothered to read the 2700 pages of the bill (and, certainly, Obama, the Constitutional scholar never perused it) we could not expect the Supreme Court to do what the Executive and Legislative branches refused to do.
Throw the whole thing out!!
Really. There ought to be some procedure for a court that is looking at the constitutionality of a law to subpoena random legislators who voted in favor of it, and throw the thing out if enough legislators can’t say what it was they voted for!
Once again, Justice Thomas said…nothing. Nothing at all. I would love to know what his thoughts are…his opinions are riveting.
Be an optimist…sometimes these opinions come out right before Independence Day. That will be one heck of a celebration when the Constitution survives yet another assault from the left.
[…] Oral Argument Day 3: Severability […]
Professor: I want to thank you so very much for sharing your legal expertise on the Supreme Court hearing this week. I feel like I am getting a far more accurate view of what is going on than I would if I relied on the elite media. Thanks for your tremendous work this week — I feel I will be more prepared to handle the outcome, no matter what it may be.
Hmmm…
Not a word about Kagan, and her astute judicial mind with her “boatloads of cash” statement?
Kagan requires her own “Severe-inabilty Clause”
Kagan should have been “severed” from this case altogether. It’s just another example of rotten leftism that she gets a say in this. She truly disgusts me.
[…] Readers: I have been following Professor Jacobson’s and Tammy Bruce’s reports on the Obamacare hearing with great interest (and Hillary is […]
James Carville thinks that Repubs will own healthcare in it’s old form, but the truth is that the Dems fumbled on the goal line when they passed this clusterfrack.
Right, all they had to do was to make the “penalty” for not having insurance into a tax and they would have been home free. But, at the time, they didn’t want to be accused of levying new taxes on the middle class because of Obama’s campaign promise not to do so.
I think this is an insight into leftist thinking as is Pelosi’s reaction when someone questioned the law’s constitutionality early on (“are you kidding?”). They don’t regard the Constitution as something that limits federal power even though that is its main purpose.
Correct me if I’m wrong, but in the case of Medicare, can’t individual states opt out of Medicare, if they believe that it is costing them to much?
I know they would lose the federal funding that is pinned to it, but I was under the impression that they were not obligated to actually be a part of the Medicare system.
I believe (not positive) that the answer is “Yes, but you don’t get any of the Medicare tax money back” i.e. if your state pays $100 in Medicare tax to DC, and only gets $90 back, thats a better deal than getting $0 back. Thats exactly the extortion bit that Sebelius was running on Arizona.
Darth Sebelius — “I am altering the deal. Pray I don’t alter it any further. “
Your going to love this….
it turns out, in Harry Reid’s rush to pass the whole healthcare bill through the senate, he willingly choose to leave out the severability clause of the mandate: of forcing all to buy healthcare.
…do ya know what that means, there is no severability arguement: the libs can’t take it out because Harry never passed it with such inside.
so now… *lol* should the mandate be declared unconstitutional by the Supreme court and…. it’s looking like that’s the way they are heavily leaning.
….they will have to void the whole healthcare bill because of the rush and the lack of reading over the bills before passage. hahaha…
…0bamacare is as good as dead now.
…although I don’t doubt that the Democrats will try to exploit some technicality or sneaky trick… to somehow convince the judges to allow it…
but it really seems unlikely, at this point.
(but then never underestimate… the dirty tricks of the left… you never know…)