Advocates today offered three potential outcomes for the Court to consider if the individual mandate fell: (1) Striking down the entire law to allow Congress to work from scratch, (2) Expunging the community rating and guaranteed coverage requirements (those obligating insurance companies to cover everyone regardless of preexisting conditions), but allowing the seemingly-unrelated aspects of the law to continue, or (3) Removing only the individual mandate so that Congress can determine and fix any problems that arise from the remaining provisions.
Normally judicial restraint is shown by the Court deferring as much as possible to elected officials (i.e. not striking down laws), which would imply that the opposite (occasionally referred to as judicial activism) is for the Court to declare more laws unconstitutional. Today the Justices wondered if stepping into the muddled territory of which provisions would effect each other and which ones could stand alone (and as Congress intended them to stand) would be an unwelcome intrusion, even if it meant more of the law would survive.
Justice Sotomayor argued that leveling any provisions beyond just those that the Court deemed unconstitutional would be an undemocratic, intrusive step outside the Court's traditional role.
Justice Sotomayor: What's wrong with leaving it to -- in the hands of the people who should be fixing this, not us?...Are you suggesting that we should take on more power to the Court?...Unless Congress tells us directly, it's not severable, we shouldn't sever. We should let them fix their problems.Justice Scalia, on the other hand, indicated he supported a complete upending of the law to avoid any unnecessary complications that might occur by salvaging bits and pieces.
Justice Scalia: So you're just put to the choice of, I guess, bankrupting insurance companies and the whole system comes tumbling down, or else enacting a Federal subsidy program to the insurance companies, which is what the insurance companies would like, I'm sure. Do you really think that that is somehow showing deference to Congress and -- and respecting the democratic process? It seems to me it's a gross distortion of it.Justice Kennedy, who is presumed by many to have the final say in the outcome of this case, appeared to side with Justice Scalia.
Justice Kennedy: When you say judicial restraint, you are echoing the earlier premise that it increases the judicial power if the judiciary strikes down other provisions of the Act. I suggest to you it might be quite the opposite. We would be exercising the judicial power if one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended. By reason of this Court, we would have a new regime that Congress did not provide for, did not consider. That, it seems to me, can be argued at least to be a more extreme exercise of judicial power than to strike -than striking the whole. I just don't accept the premise.But the lawyers came well prepared for these responses.
Paul Clement argued for the petitioner that each of the provisions relied on one another so that if the individual mandate fell, the Court's investigation would find that the periphery clauses would have to as well. The mandate is connected to the exchanges, which is connected to the tax credits, which is connected to the employer mandates and revenue offsets, and so on and so forth like dominoes.
H. Bartow Farr, appointed by the Court to argue that the rest of the law could stand without the mandate, argued that the mandate was just one of many tools that Congress relied on to fund the monetary fallout insurance companies would absorb. If the Court found the mandate unconstitutional, Congress would simply fill in the gap with a different mechanism.
By the end of the argument it appeared that, as expected, the liberal justices wanted as much of the act as possible to remain, while the more conservative justices were content with wiping the slate clean. Only Justice Roberts appeared willing to allow some of the periphery provisions to remain.