Some Quick Reactions to the Severability Argument

I’ve only had a chance to listen to the oral arguments regarding the potential severability of the individual mandate from the rest of the Affordable Care Act. Here’s what I’m left wondering:

• Does it potentially hurt the challengers that they’re pushing for a total invalidation…that is, for the Court to strike down the Act in its entirety? Here’s what I’m getting at: some justices might be reluctant to “throw the baby out with the bathwater” so to speak. If you ask them to take an all or nothing approach they may uphold the entirety of the law. I didn’t get any especially strong indications from Kennedy that this was how he was thinking through the problem but I sort of think that this all-or-nothing approach Paul Clement advances could be detrimental to his position.

• That said, I found the government’s position untenable. Justice Scalia somewhat exaggerated the point but his basic contention has some force: why should the Court have to or even be allowed to go through all 2000+ pages of the Act and systematically determine what stays and what goes? Either Kagan or Sotomayor—I can’t remember which—correctly points out that nothing near that level of work would be required but the philosophical point has at least some force. At the point that the Court has to do more section-by-section analysis it can start to re-write the statute in a sense. And certainly, it violates the basic principle that the Court is only supposed to consider the questions that the parties to the suit present. Thus, it’s not within the Court’s proper place to examine the constitutionality of a section no side argues is unconstitutional.

• There was certainly a feeling that severability might properly turn on how central the individual mandate was to the legislation. Basically, if it is the main portion then all of the law has to go but if it is only a portion then the rest of the law can remain intact. An interesting compare/contrast with the Court’s decision in Booker occurred. Booker is a case that struck down aspects of mandatory sentencing under federal sentencing law, making those guidelines discretionary instead (I’m oversimplifying here for the sake of concision).

• I’ve found it interesting to observe how the tone of arguments ahs become more ‘hostile’ or ‘adversarial’ throughout the week. The first day was generally cordial like most oral arguments are. At this point, counsel for both sides have talked over judges and, in the small part of the Medacaid argument I’ve listened to, several of the judges had difficulty hiding their disdain for peitioner’s positions. When Kagan asked Clement about the federal government giving states money, she used a hypothetical where she offered Clement a job for $10 million and asked if he’d really turn that down. When he responded, “it’d depend on where the money was coming from” she had essentially this reaction: really?? You’re actually gonna try to say that? Indeed, her incredulity was palpable and illustrative of the way arguments have grown more contemptuous throughout the week.

That’s pretty much it for now. If I get a chance to listen to the rest of the Medacaid arguments soon, I may post some more thoughts. In a day or two, I’ll probably post some ‘forma’ predictions about what outcome I expect. For now, this will have to do.

-Zachary Cloud

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