Supreme Court: Can Health Act Survive Without Individual Mandate?

March 28, 2012 — -- After three days and more than six hours of arguments before the Supreme Court, Solicitor General Donald B. Verrilli gave justices a closing statement of sorts, saying that the Affordable Care Act "unshackled" those who previously could not afford health care and helped to "secure the blessings of liberty" for millions of Americans.

Paul D. Clement, the attorney for 26 states challenging the law, then dismissed Verrilli's argument, saying it was a "funny concept of liberty that forces" someone to buy a product they don't want.

After Chief Justice John Roberts thanked the attorneys, the lawyers' oral arguments were over and the case was submitted for the justices' decision, expected in coming months.

On Tuesday, the court heard arguments on whether the individual mandate, the key provision of the health care law that requires most individuals to buy health insurance, is constitutional.

This morning, the court moved on to arguments over whether the rest of the Affordable Care Act would fall if the mandate were struck down.

Deputy Attorney General Edwin S. Kneedler, arguing on behalf of the government, began arguments by saying the mandate is constitutional, but if it were to fall only two other provisions of the law should follow suit and fall, as well. Those two popular provisions, in part, prohibit insurance companies from denying coverage to people with pre-existing conditions.

Kneedler rejected the "sweeping proposition" of the challengers, who contended that the entire health care law should fall.

Justice Antonin Scalia did not seem convinced.

"If you take the heart out of the statute, the statute is gone," he said.

But other justices probed a middle ground: striking down provisions of the law closely related to the individual mandate.

Justice Anthony Kennedy, a critical vote in the case, seemed concerned about the "risk" imposed on insurance companies if the mandate were struck down but other provisions requiring the insurance companies to cover more people were left standing.

Chief Justice John Roberts worried about the litigation to come from parties affected by parts of the law still standing after the individual mandate falls.

"Do you contemplate them bringing litigation?" he asked.

In her questions Justice Ruth Bader Ginsburg summed up the argument. She said the decision was between a "wrecking operation versus a salvage job." She pointed out that there are many parts of the law "that have nothing to do" with the mandate.

Roberts agreed with the notion that the law contains provisions quite separate from the individual mandate. For example, the law includes everything from a provision on black lung disease to a requirement that restaurants disclose nutritional information about menu choices.

Justice Sonia Sotomayor suggested that it was not the job of the court to strike down the whole law.

"Why wouldn't we let Congress do that?" she asked. "What's wrong with leaving it in the hands of people who should be fixing it, not us?"

But Clement, the lawyer for the challengers, said, "If the mandate is unconstitutional, then the rest of the act cannot stand."

In a rare afternoon session, the court took up a different provision of the law, it's expansion of Medicaid.

Clement argued that Medicaid was established in 1965 as a cooperative federal-state partnership, but the new law creates a "massive expansion" of that relationship.

Beginning in 2014, states will be asked to cover all individuals younger than 65 with incomes up to 133 percent of the poverty level. Although the federal government will initially fund 100 percent of that expansion, by 2017 states will be responsible for 5 percent of those costs, with that number increasing to 10 percent by the end of the decade.

Immediately, Justice Elena Kagan challenged Clement's argument that the federal government was coercing states to participate.

"Why is a big gift from the federal government a matter of coercion?" she asked. She referred the money given to the states as a "boatload of federal money."

Clement said that Congress made the new terms a condition of continued participation in Medicaid.

Although the justices have finished hearing arguments, in many ways their real work now begins.

They will meet behind closed doors to discuss the arguments.

The justice who is most senior on the majority side will assign writing the opinion.

Drafts will begin to circulate among the chambers and a decision is expected by late June.