Will Court amputate parts of health care law?

By Kimberly Atkins, Esq.

WASHINGTON– On the last of three days of oral arguments on the constitutionality of the federal health care reform law, the justices of the U.S. Supreme Court pondered whether they should act as virtual surgeons, taking a scalpel to the statute to excise constitutionally problematic portions while leaving the rest in place.

But the justices seemed stuck on a central issue during Wednesday’s arguments: whether the law can function without its heart, which is the individual minimum coverage mandate.

On that issue of severability, the justices – as on Tuesday when they considered the mandate’s constitutionality – seemed split.

“It’s a choice between a wrecking operation, which is what you are requesting, or a salvage job,” Justice Ruth Bader Ginsburg said to Paul Clement, a partner in theWashington office of Bancroft, who represents business groups seeking to strike down the law entirely. “And the more conservative approach would be salvage rather than throwing out everything.”

But Justice Anthony M. Kennedy, seen as a potentially crucial vote in the case, later asked Deputy Solicitor General Edwin S. Kneedler if severing parts of the law, thereby creating a statute different than the one passed by Congress, was not “an awesome exercise of judicial power” leaving the Court unsure of “what the consequences might be.”

 ‘A hollowed-out shell?’

Clement, urging the Court on the businesses’ behalf to rule that the entire law must fall if the individual mandate is ruled unconstitutional, focused on the complexity of the law, and the difficult task the Court would have trying to dissect it.

“The provisions that have constitutional difficulties [are] the very heart of this Act,” Clement. “And … they are textually interconnected to the exchanges, which are then connected to the tax credits, which are also connected to the employer mandates, which is also connected to some of the revenue offsets, which is also connected to Medicaid.”

But Chief Justice John G. Roberts, Jr., pointed out that several stand-alone provisions were also included in the measure.

“[The government] cited the Black Lung Benefits Act and [measures that] have nothing to do with any of the things we are talking about,” Roberts said.

Clement said that such measures could find another legislative vehicle, but keeping the law without the mandate would render it “a hollowed-out shell.”

 “But I’m still not sure what is the test,” Kennedy said. “I need to know what standard you are asking me to apply.”

“I’m a big believer in objective tests, Justice Kennedy,” Clement said.

“And that objective test is what?” Kennedy asked.

That test is “whether the statute can operate in the manner that Congress intended,” Clement replied.

 ‘Extreme exercise of judicial power?’

Kneedler walked a fine line in his argument for the government: He had to simultaneously urge the Court to uphold the mandate provision while also arguing that the rest of the law should stand in the event the mandate is struck down.

When Kennedy expressed concerns about the limits of the Court’s power, Justice Antonin Scalia jumped in, addressing Kneedler but really responding to Kennedy.

“Don’t you think it’s unrealistic to say, ‘Leave it to Congress [to] consider it dispassionately?” Scalia asked. “[There] is no way that this Court’s decision is not going to distort the congressional process. Whether we strike it all down or leave some of it in place, the congressional process will never be the same. One way or another, Congress is going to have to reconsider this, and why isn’t it better to have them reconsider” the whole thing?

“We think as a matter of judicial restraint,” Kneedler replied.

Several justices jumped in simultaneously to follow up on that comment. Kennedy won.

“We would be exercising the judicial power if one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended,” Kennedy said. “[W]e would have a new regime that Congress did not provide for, did not consider. That, it seems to me, can be argued at least to be a more extreme exercise of judicial power than to strike” the entire law.

H. Bartow Farr III, a partner in the Washington office of Farr & Taranto, was appointed by the Court to defend the 11th Circuit’s ruling that the individual mandate, which it found to be unconstitutional, could be severed from the rest of the law.

“Even though the system is not going to work precisely as Congress wanted [without the mandate] it would certainly serve central goals that Congress had of expanding coverage for people who were unable to get coverage or unable to get it at affordable prices,” Farr argued.

The Court also heard arguments on Wednesday in the states’ challenge to the Medicaid provision of the bill, which requires states to expand coverage in exchange for federal Medicaid funding.

Rulings on the application of the Anti-Injunction Act, the Medicaid requirement, the individual mandate’s constitutionality and, if necessary, the severability issue will be rendered before the Court’s term ends in June.

Kimberly Atkins is staff writer for Lawyers USA, which, like Michigan Lawyers Weekly, is a Dolan Company newspaper.


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