Let’s say the Supreme Court finds that the individual mandate in the Affordable Care Act is unconstitutional (not as far a stretch as it seemed before Tuesday’s arguments): What happens then? Does that mean the entire 2,700-page law is invalid, or can the mandate be removed like an unconstitutional tumor, leaving the rest of the bill intact? That’s the question that the high court pondered during its morning session Wednesday.
The court was offered three alternative avenues to resolve it. The first, suggested by the states and business interests challenging the law, takes the baby-with-the-bathwater approach. It says the law is “a carefully-balanced and clockworklike statutory arrangement” and thus the whole thing must be tossed if a central element, such as the mandate, is removed. The second approach was offered by the federal government, which is defending the law, and argues that a handful of other provisions in the bill are so deeply entangled with the mandate that they should be stricken as well, including the popular ban on turning away people with preexisting conditions. Finally, the court asked an outside attorney to argue that only the mandate should go if it is found unconstitutional, a position held by a lower court but not shared by either of the parties.
This entire session of argument only became relevant because, for reasons that remain unclear, a severability clause was not included in the Affordable Care Act. Severability clauses—which are almost invariably included in large and complex bills such as the ACA—state that if one part of the bill is found to be unconstitutional, the rest of the bill may remain valid. Without such a clause, courts can decide how much stays and how much goes.
Some of the more conservative Justices hinted that they thought the entire health-care law should go with the mandate. Justice Scalia said that he couldn’t think of another case where the court had struck down the “heart” of a law while leaving the remaining “hollow shell” on the books. He also found it “unrealistic” that the court would “go through this enormous bill item by item” to determine which provisions were too entangled with the mandate to survive. Finally Scalia was concerned that “legislative inertia” would make it difficult for Congress to fix the bill if the court struck down just one part.
On the other side, Justice Ginsburg pointed out that whether or not the mandate is severable is for the legislative branch to decide. Further, Justice Kagan said, the court has no competence to guess what parts of the legislation would or would not have passed without the inclusion of the individual mandate. In fact, as the court repeatedly discussed, there are many sections of the bill that bear no relation to the mandate, including provisions relating to health care for Native Americans that Justice Breyer memorably referred to as “the Indian thing.”
Ginsburg described the court’s choice as something between “a wrecking operation” and “a salvage job.” Traditional legal doctrine would dictate that if the court strikes down the mandate, it should do so in the narrowest way possible. Precedent and principle would dictate this minimalist approach. But in a case fraught with political consequences—one many observers are calling the most prominent in decades—those guiding concepts may not be enough.