Now that the Supreme Court has wrapped up the oral argument phase of what will be the mother of all landmark decisions – Wednesday’s topic concerned the issue of severability – it basically boils down to one of three possibilities:
1. The Court throws out the mandate but leaves all or most of the remaining statute intact.
2. The Court upholds the mandate.
3. The Court throws out the baby with the bathwater.
I think it’s fair to say that the first possibility is the least likely scenario. It’s clear that the conservative jurists on the Court have no stomach for going through all 2,700 pages of the law to decide which parts they want to keep and which parts they want to toss. The fact that most of the law falls outside any challenge to the commerce clause is irrelevant. This isn’t your run-of-the-mill legislation. Parsing through this law could well take months to accomplish. Frankly, I just don’t see it happening.
Equally irrelevant is the point that striking down only the mandate would cause undo harm to millions of consumers who would now have to foot the bill for the other enforcement measures in the law. While the economic impact is real, any first-year law student will tell you courts concern themselves first and foremost with the law, even one as partisan as this. Anticipating the fallout from judicial decisions – even activist ones – is the exclusive purview of Law and Order junkies.
As for speculating on what Congress’s intent would’ve been without an individual mandate, this might be the most ludicrous argument of all. Throwing the remaining part of this law back to a legislative branch that can’t pass a ham sandwich so that it can come up with another method of paying for it is the definition of insanity. The “salvage” job that Justice Ginsburg alluded to in her retort to Paul Clement, the attorney representing the challengers, is wishful thinking at its extreme.
That leaves options 2 and 3 as the only viable outcomes left. It is painfully obvious that either the law will survive intact or it will be struck down in its entirety. As I wrote in my last piece, it’s a 50/50 proposition at best. But one thing should be made abundantly clear. Any attempt to conclude that just because the justices showed concern over the doctrine of severability means that they might end up upholding the mandate would be imprudent and premature. Remember this is the same Court that ostensibly threw out McCain/Feingold. Antonin Scalia summed it up best. If the Court strikes down the mandate, “then the statute’s gone.” Case closed.
On the other hand, it would be reasonable to conclude that the weight of nulling and voiding such a massive piece of legislation as this would be heavy even for partisan hacks like the Roberts’ majority. Roberts, in particular, might end up being the key to any hopes the government has of victory, not Kennedy. Despite his obvious ideological bent, Roberts is keenly aware of his position as Chief Justice. Upholding the mandate would permit him to portray himself as above politics. It would also allow him to concentrate his efforts on the more nefarious matters that await this Court down the road. The environmental and civil rights laws that many conservatives decry as overreach will no doubt be re-visited by the judicial branch. These cases are the real prizes for the Right and they badly want them. The healthcare debate, while good theater for the wingnuts who listen to Mark Levin, is mere window dressing in the grand scheme of things. If Roberts punts on the mandate but gives them the rollbacks they want on the other issues all will be forgiven.
Of course I’m just speculating here. The truth is nobody knows what’s going to happen in June. That’s what makes this so exciting and excruciatingly painful to sit through. The fate of millions of people riding on what a couple of men in black robes end up deciding. Ain’t democracy grand?
I wonder what the Founding Fathers would have to say about all this.