The Supreme Court spent over an hour and a half this morning acting like it was going to strike down the key feature of the Affordable Care Act, but a funny thing happened on the way to the noon recess: The justices made it apparent that they have no interest in going through the remainder of the entire 2,700 pages of the law to figure out what to keep and the net effect may have shored up support for the controversial individual mandate itself.
This is the off-the-cuff analysis of Lynn Denniston of SCOTUSBlog, who along with Dalia Lithwick of Slate are without peer in covering the high court.
"The dilemma could be captured perfectly in two separate comments by Justice Scalia," Denniston writes. "First, that it 'just couldn’t be right' that all of the myriad provisions of the law unrelated to the mandate had to fall with it, but, later, that if the Court were to strike out the mandate, 'then the statute’s gone.' "
Much of the morning's argument focused on just what role the Court would perform in trying to sort out the consequences of nullifying the requirement that virtually every American have health insurance by the year 2014.
Denniston writes that the argument presented the court three mutually exclusive options:
* Strike down all of the Affordable Care Act along with the mandate, which is the challengers' position.
* Strike down only two core changes in the way the health insurance system works, which is the Obama administration's position.
* Strike down nothing but the mandate, which is the position of a court-appointed lawyer. None of these options seemed to be especially appealing to members of the Court, and each of the three lawyers who came to the lectern faced tough and often skeptical questioning.
Congress’s capacity to react sensibly also came into question, somewhat surprisingly in my view given the cavalier attitude of the court's conservative bloc, and there have been indications that some justices are concerned about the chaos that might ensure if the heart of the act, let alone the entire act, was scuttled.
Justices Scalia and Kennedy appeared to harbor doubts that lawmakers would be up to the task of working out a new health care law if this one was overturned in part or whole, and Scalia noted the problems in the filibuster-prone Senate.
My head has told me from the outset of arguments this week that the mandate, if not the entire law, would be overturned, but my heard finds the plaintiff's primary argument that the act in general and mandate in particular is "unprecedented" is utterly unconvincing. Several major legislative initiatives in the last 80 years have been "unprecedented," notably Social Security, and it is possible that a bloc led by Chief Justice Roberts, who has been unsympathetic to the "unprecedented" argument, might in the end save the act.
It would not be the end of the world if the mandate is overturned.
The justices have seemed receptive to a single-payer plan under which consumers are insured from a pool financed by many parties, including employers, employees and government. Single-payer plans collect all medical fees and then pay for all services. The is the system in Canada, the United Kingdom and Australia, among other nations.
Final arguments were offered this afternoon, while a ruling is expected in June.
Illustration by Bill Hennessey