The Supreme Court on Wednesday considered whether the rest of President Obama’s health care law can stand on its own if the justices were to strike down the individual mandate for Americans to purchase insurance, as the justices held their third and final day of oral arguments in the landmark case.
Opponents of the law want the court to overturn it in its entirety, and said there is no way to make the other parts work if the mandate is cut — and they seemed to have a champion in Justice Antonin Scalia, who said the court would be putting itself in the shoes of lawmakers if it tried to decide which parts to leave in and which parts to eliminate.
“Once you cut the guts out of it, who knows which parts were desired and which ones weren’t?” Justice Scalia said.
But other justices seemed more inclined to allow the individual mandate to be severed without killing the rest of the law.
“The question is, is half a loaf better than no loaf?” Justice Elena Kagan said.
On Tuesday the court heard arguments about whether the individual mandate exceeded Congress’ powers under the Commerce Clause of the Constitution, while Wednesday’s morning session was devoted to “severability” — the legal concept that the court can toss out the offending parts of a law while leaving the rest intact.
The justices grappled with whether it showed more deference to Congress to leave the rest of their law in place or to send it back to them for a complete rewrite. The question would arise only if the court did find parts of the law unconstitutional.
Justice Sonia Sotomayor said the law’s new health exchanges have proved to be viable in some states even where there is no individual mandate, such as Utah.
“Exchanges have proven to be a cost-saver in many states who have chosen them. Why should we cut out a cost-saver?” she said.
Later Wednesday the court was to hear arguments over the law’s expansion of Medicaid, which 26 states have sued to block, saying it puts too much of a financial burden on them.
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