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Supreme Court justices appear poised to sweep aside entire health-care law

Conservative Supreme Court justices argued Wednesday morning that without the individual mandate, the entire 2,700-page health-care law must be invalidated in full.

By Staff writer / March 28, 2012

This artist rendering shows Deputy Solicitor General Edwin S. Kneedler speaking before the Supreme Court in Washington, Wednesday, March 28.

Dana Verkouteran/AP



With the centerpiece of President Obama’s health-care reform law in constitutional peril, the US Supreme Court on Wednesday turned its attention to the thorny question of what happens to the rest of the law if the so-called individual mandate is struck down.

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At oral argument Tuesday, the conservative wing of the court, including swing Justice Anthony Kennedy, had peppered Solicitor General Donald Verrilli with a barrage of critical and skeptical questions.

The session led many analysts to conclude that the heart of the Patient Protection and Affordable Care Act, the individual mandate, may be declared unconstitutional by five justices of the nine-member court.

That same split was on full display in two sessions Wednesday, with the conservative justices arguing in the morning that the entire 2,700-page statute must be invalidated in full, while the court’s liberal wing favored striking down only those sections of the law closely tied to the individual mandate. In the afternoon the conservatives attacked the constitutionality of a plan to expand Medicaid as part of the reform law.

The conservative majority's consistent challenges to the health-care law in three days of hearings suggest more than the law's individual mandate may be in jeopardy. The court now appears poised to strike down the law in its entirety.

The underlying issue the justices were addressing in the morning is called severability. It arises whenever a court strikes down a portion of a law and must decide whether other parts of the law can still function.

Justice Ruth Bader Ginsburg said many of the features of the health reform law were unconnected to the individual mandate and that it would be wrong to force Congress to reauthorize all of them.

The choice she said was between approaching the task as a wrecking operation or as a salvage job. “The more conservative approach would be salvage rather than throwing everything out,” she said.

Justice Antonin Scalia disagreed. “My approach would say if you take the heart out of the statute, the statute is gone,” he said. “That enables Congress to do what it wants in the usual fashion. And it doesn’t inject us into the process of saying: this is good, this is bad, this is good, this is bad.”

Justice Scalia added: “It reduces our options the most and increases Congress’s the most.”


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