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.
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.