The Supreme Court's conservative justices are hinting that they might have to strike down Obamacare entirely because declaring the individual mandate unconstitutional would require nullifying the entire law.
“The court's conservatives said the law was passed as a package and must fall as a package,” the
Los Angeles Times reported.
Although the court is expected to rule by late June on the fate of the President Obama’s signature legislation, Justice Antonin Scalia hinted that the decision might be a fait accompli even at this point.
"One way or another, Congress will have to revisit it in toto," the Times quoted Scalia as saying.
Similarly, Justice Anthony Kennedy said it would be an "extreme proposition" to permit the varied insurance regulations to remain if the mandate were struck down.
On the other hand, the court's liberal justices urged caution. Justice Ruth Bader Ginsburg said the court should do a "salvage job," not undertake a “wrecking operation."
Chief Justice John Roberts Jr. and Justice Samuel Alito Jr. echoed Scalia and Kennedy’s view that the law should stand or fall in total. They and Justice Clarence Thomas would have a majority to quash the entire law.
An Obama administration lawyer countered that it would be "extraordinary" for the court to throw out the entire law.
The law, which constitutes the U.S. healthcare system's biggest overhaul in nearly 50 years, seeks to provide health insurance to more than 30 million previously uninsured Americans and to slow down soaring medical costs.
The 26 of the 50 U.S. states challenging the law say the rest of Obama's healthcare overhaul must go if the court strikes the insurance requirement. Paul Clement, their advocate before the Supreme Court, told the justices that the so-called individual mandate to obtain insurance or face a penalty is "essential to the entire scheme."
The first of the day's two sessions was unusual in that it assumed an answer to the central question in the historic health care case: that the requirement that Americans carry health insurance or pay a penalty will be struck down.
In their questions, the liberal justices took issue with Clement.
"What's wrong with leaving this in the hands of those who should be fixing this?" said Justice Sandra Sotomayor, referring to Congress.
Roberts also spoke about parts of the law that "have nothing to do with any of the things we are" talking about.
For example, Ginsburg observed that the act deals with issues such as black lung disease.
"Why make Congress redo those?" she asked. "There are many things" that have "nothing to do with affordable healthcare."
But Clement said the court would be leaving "a hollow shell" if it decided to excise the several key provisions. "The rest of the law cannot stand," he contended.
Roberts and Kennedy also asked hard questions of Deputy Solicitor General Edwin Kneedler that indicated they are at least considering Clement's arguments. Kneedler said that the only other provisions the court should kill in the event the mandate is stricken are revisions that require insurers to cover people regardless of existing medical problems and limit how much companies can charge in premiums based on a person's age or health.
Scalia suggested many members of Congress might not have voted for the bill without the central provisions, and he said the court should not go through each and every page to sort out what stays and what goes.
"What happened to the Eighth Amendment?" Scalia said, referring to the Constitution's ban on cruel and unusual punishment. "You really expect us to go through 2,700 pages?"
As the arguments resumed Wednesday morning, a smaller group of demonstrators than on previous days gathered outside.
Supporters of the law held a morning news conference where speakers talked about the importance of Medicaid. And, marching on the sidewalk outside the court, supporters repeated chants they've used the past two days including "Ho, ho, hey, hey, Obamacare is here to stay." Most of their group departed not long after arguments began inside.
Opponents of the law, including Susan Clark of Santa Monica, Calif., also stood outside the court. Clark, who was wearing a three-cornered colonial-style hat, carried a sign that read "Obamacare a disaster in every way!"
"Freedom, yes. Obamacare, no," other opponents chanted.
The first two days of fast-paced and extended arguments have shown that the conservative justices have serious questions about Congress' authority to require virtually every American to carry insurance or pay a penalty.
The outcome of the case will affect nearly all Americans, and the ruling, expected in June, also could play a role in the presidential election campaign. Obama and congressional Democrats pushed for the law's passage two years ago, while Republicans, including all the GOP presidential candidates, stronly oppose it.
But the topic the justices took up Wednesday comes into play only if they find that the insurance mandate violates the Constitution.
The states and the small business group opposing the law say the insurance requirement is central to the whole undertaking and should take the rest of the law down with it.
The federal appeals court in Atlanta that struck down the insurance requirement said the rest of the law can remain in place, a position that will be argued by a private lawyer appointed by the justices, H. Bartow Farr III.
On Tuesday, the conservative justices sharply and repeatedly questioned the validity of the insurance mandate.
If the government can force people to buy health insurance, justices wanted to know, can it require people to buy burial insurance? Cellphones? Broccoli?
The court focused on whether the mandate for Americans to have insurance "is a step beyond what our cases allow," in the words of Justice Kennedy.
"Purchase insurance in this case, something else in the next case," Chief Justice Roberts said.
But Kennedy, who is often the swing vote on cases that divide the justices along ideological lines, also said he recognized the magnitude of the nation's health care problems and seemed to suggest they would require a comprehensive solution.
And Roberts also spoke about the uniqueness of health care, which almost everyone uses at some point.
"Everybody is in this market, so that makes it very different than the market for cars or the other hypotheticals that you came up with, and all they're regulating is how you pay for it," Roberts said, paraphrasing the government's argument.
Kennedy and Roberts emerged as the apparent pivotal votes in the court's decision.
The Associated Press contributed to this story.
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