Supreme Court Oral Arguments


The Affordable Health Care Act


"If the individual mandate is unconstitutional, then the rest of the act cannot stand." - Solicitor General.


The government makes it clear that the individual mandate is critical to the viability of the legislation, economically, politically, or by any other pragmatic measure.


"Congress specifically found that having the individual mandate is essential to, to the operation of guaranteed issue and community ratings."


The individual mandate is an essential part of the legislation.


"I just want a bottom line as why don't we let Congress fix it?"


Justice Scalia on the severability clause.


The consequence of your proposition, would Congress have enacted it without this provision, ok, that's, that's the consequence, that would mean that if we struck down nothing in, in this legislation but the, oh what's it called, the cornhusker kickback, ok, we, we find that to violate the Constitutional proscription of venality, ok. (Laughter)When we strike that down, itís clear that Congress would not have passed it without that.It, it was, it was, uh, the means of getting the last necessary vote in the Senate.And your telling us that the whole statute wonít fall because the, the cornhusker kickback is bad.That can't be right.


Is the individual mandate severable from the law in toto? This justice does not appear to think so.


Justice Ginsberg


"Mr Clement, there are so many things in this act, hm, uh, that are unquestionably ok.I think you would concede that, that we're authorizing whether the Indian Health Care Improvement Act, changes to the black lung benefit, Why make Congress redo those.I mean it's a question of whether we say everything you did is no good now start from scratch, or to say, yeah, there, thereare many things in here that had nothing to do frankly with the, the affordable health care and there are some that we could just...let Congress decide whether if it wants them in or out.So why shouldn't we say that's a choice between a wrecking operation, which is what you are requesting, or a salvage job, and the more conservative approach would be salvage rather than throwing out everything."


The individual mandate is unconstitutional.Now, what are we going to do with a law which does not specifically contain a severability clause.


Justice Sotomayor


"What's wrong with the presumption that our law says, which is, we presume that Congress wouldn't want to sever.Wouldn't that be the simplest most subjective test gong past what Justice Scalia says we have done, ok, get rid of legislative intent altogether, which some of our colleagues in other contexts have promoted, and just say, unless Congress tells us directly it's not severable we shouldn't sever.We should let them fix their problems.I, I, you still haven't asked, answered me why in a Democracy structured like ours where each branch does different things, why we should involve the court in making the legislative judgment."††††††


OK, the health care law is unsupportable without the individual mandate.Negate that piece through the court and then let Congress decide how to fix the law without that provision.The problem is they canít fix it without that provision and the law will be unsupportable and unaffordable.


"If the individual mandate is unconstitutional, then the rest of the act cannot stand." - Solicitor General.