If the individual mandate is deemed unconstitutional, should the rest of President Obama's health care reform die with it? Supreme Court justices wrestled with that question today in the third and final day of arguments, with the challengers' lead attorney stating his case simply: “If the individual mandate is unconstitutional, then the rest of the act cannot stand," said Paul D. Clement. That got a mixed reaction, reports the Washington Post and New York Times:
- Antonin Scalia: He sounded sympathetic. “My approach would be to say that if you take the heart out of this statute, the statute’s gone.”
- Ruth Bader Ginsburg: She disagreed. “There are so many things in this act that are unquestionably OK,” she said. If the choice is between "a wrecking operation and a salvage job, a more conservative approach would be a salvage job."
- Sonia Sotomayor: She, too, disagreed. "Why shouldn't we let Congress" decide what to do, she asked. "What's wrong with leaving this in the hands of those who should be fixing this?"
So would the provisions outside the mandate be safe? Most of the early coverage shies away from drawing conclusions, though the AP
and the Wall Street Journal
both highlight a comment from potential swing vote John Roberts that sounds sympathetic to the government. Many of the law's provisions "have nothing to do" with the insurance mandate, he said. Politico
also thinks "most justices" sounded inclined not to throw out the entire law, though they differed on the specifics of what to save. (Of course, it's no certainty
that the mandate itself will be struck down, despite yesterday's arguments and subsequent commentary.)