What the court will have to decide is, IF they determine that the mandate is unconstitutional, how does that affect the rest of ACA? To me the argument hinges on the role of the court. Their job is to rule on constitutionality. The only sections of ACA that are being questioned on those grounds are the mandate and medicaid expansion (we'll leave that one alone for now). The problem is that the mandate is the funding mechanism by which many of the other measures are made possible. And so the court's options are as follows if they find the mandate to be unconstitutional:
1. Throw the entire ACA out. I think this is troubling for much of the court because it was clearly legislative intent to pass the law and this would be a HUGE over-reach of the court.
2. Leave the rest of the law standing. This would cripple the insurance companies because so many provisions are unaffordable without the mandate. It would demand immediate legislative action to forestall the collapse of the entire health care system.
3. Pick and chose which provisions to let stand. There was apparently a lot of discussion about this in court yesterday with justices asking what criteria they should be expected to use. Reading about that demonstrates how it leads the court into extra-judicial territory.
Some experts say that this dilemma makes it less likely the court will rule against the mandate.
The Supreme Court spent 91 minutes Wednesday operating on the assumption that it would strike down the key feature of the new health care law, but may have convinced itself in the end not to do that because of just how hard it would be to decide what to do after that. A common reaction, across the bench, was that the Justices themselves did not want the onerous task of going through the remainder of the entire 2,700 pages of the law and deciding what to keep and what to throw out, and most seemed to think that should be left to Congress. They could not come together, however, on just what task they would send across the street for the lawmakers to perform. The net effect may well have shored up support for the individual insurance mandate itself.
As I said on Monday, I'm not going to get into the business of predictions here. The truth is - we're going to have to wait until June to hear the outcome. But I do suspect that this severability issue will have significant impact on the decision.
The other thing that came out of the hearing yesterday is actually something I find pretty depressing. Apparently during the discussion of how to decide what provisions of ACA to let stand if the mandate is found to be unconstitutional, Justice Scalia wanted to take something from the bill to use as an example. What he chose to talk about was the so-called "cornhusker kickback"...something that was removed from the bill before it was passed.
What this indicates is that at least one justice is deciding what is perhaps the most important SCOTUS decision of our lifetimes without actually knowing what is or is not included in the legislation. Since that issue was a favorite right wing talking point as ACA was being drafted, it is clear that Justice Scalia paid more attention to things like Faux News than to what actually happened in Congress. What we know about people like that is that they'd be better informed if they got no news at all. It's a strong red flag signal that when it comes to Scalia's vote - it will be one of ideology trumping actual information. I guess that comes as no big surprise, but its pretty telling nonetheless.