If the Court ultimately strikes down that mandate, it may then turn to the question of whether any or all of the remainder of the new law can remain intact and functioning. The Court will hold a hearing on that next Wednesday at 10 a.m., with the audiotape recording to be released within an hour or so after that hearing has concluded. It will be a 90-minute hearing. The description below will serve as a guide on what to expect in listening to that audiotape.
Few exercises in interpreting the Constitution are as bizarre as the one that the Supreme Court and lower courts go through if they strike down only a part of a multi-faceted law, and then decide what of the remainder can survive. It is bizarre because, in asking itself to decide the fate of the balance of such a law, a court actually is making a sophisticated guess of what Congress would have wanted if it could not have all of what it actually wrote into a law. It could ask Congress directly what it wanted, but it does not do that; it takes on the task itself, when Congress has not said in the body of a law what it wanted to happen if part were nullified.
But it is not an everyday exercise. It is supposed to be rare, because it draws a court quite close to the writing of a law, supposedly a task that the Constitution’s Article I gives to Congress alone. When it does occur, a court is supposed to nullify no more of a law than is absolutely necessary.
This process of selection of what to keep and what to cast aside, along with a constitutionally defective part of a law, is called “severability” analysis. In other words, if part of the law is nullified, can the rest be “severed” from it and kept on the statute books, still functioning.
The Supreme Court’s scheduled hearing next Wednesday morning will involve three lawyers, engaging the Court on what they think it should do, in the event it nullified the individual mandate. The argument will unfold as if the Court has chosen to pull the mandate out of the ACA, although it obviously won’t have done it by then.
Stepping up to the lectern directly in front of the nine Justices (and all nine of them will participate), the lawyer for the challengers to the mandate and other parts of the new law will tell the Court that the entire ACA is a package unto itself, with all of the parts interacting. That attorney may liken it to a fine watch, with the mainspring being the individual mandate: take that out, and nothing else works.
The lawyer probably will go over the law in some detail – if not too often interrupted by the Court – to show how he believes all of the parts depend upon each other. The new health care law, he is apt to say, has a demand side for health care insurance, and a supply side, and that both were meant to bring about near-universal health insurance.
The Justices are likely to interrupt that lawyer early and often, on just how the law is supposed to work, and on what evidence he has to show what Congress would prefer, knowing that the mandate was gone.
Responding, the lawyer may talk about how the leaders in Congress fashioned the new law along with major players in the health insurance and health care fields, and how so many lawmakers themselves said at the time that this had to be an all-or-nothing, comprehensive project to change the way the insurance market operates.
Along the way, incidentally, the lawyer may also seek to say again what was said in challenging the mandate itself, about how it supposedly coerces Americans into buying health insurance that many of them don’t want. The idea of that would be to keep that line of argument before the Court, since it won’t have to decided that question yet.
Some of the members of the Court, having read the U.S. government’s brief, may well press the challengers’ lawyer to say why the Court even needs to rule on the severability question (the government brief has made a complex argument why the Court, even if it strikes the mandate, need not go into the remainder of the law).
The lawyer would respond to those questions by saying that the government has it all wrong on that point. Explaining, that lawyer will say that the issue of “severing” parts of a law after a part was struck down is a search for a remedy for the constitutional violation, and not a fresh new challenge to the remaining parts of the law.
Justices are also likely to press that attorney on some specific parts of the law that remain, to see why they would have to fall with the mandate. Many parts of the law, it could be noted, already are being implemented and the Court could ask about what is to happen to those.
At a number of points in that lawyer’s argument, he is sure to make a point about judicial restraint: the best thing for the Court to do, out of respect for the constitutional separation of powers, is to nullify the entire ACA and then leave it to Congress to do what it wants with health care knowing that it could not have the mandate.
Next up to the lectern will be the federal government’s lawyer. The opening thrust of that attorney probably will focus on the argument that the Court need not confront the severability issue at all. That almost surely will draw a flurry of questions from the Justices, because that argument is strongly disputed not only by the challengers but also by the Court-appointed lawyer who has been selected by the Court to join in the argument to make the point that no part of the ACA need be sacrificed with the mandate.
Pressed on the point, the government lawyer may then feel a need to go ahead and discuss severability, and will no doubt stress that the Court should be very wary of striking down any more of the ACA than it absolutely must. Only that, the lawyer will be inclined to say, will confine the judicial task to the narrowest choice about what to keep and what to discard.
As the argument along those lines proceeds, the government attorney will seek to make a case that two parts of the ACA would not be able to function without the mandate: a requirement that insurance companies cover everyone, even those with pre-existing medical conditions, and the requirement that they do so without raising rates beyond affordable levels.
The Justices may well demand fuller explanations on those points, to test whether those two provisions are really central and whether they could actually be made to work even if the mandate were not in the law to bring in premiums from newly covered holders of health insurance policies.
There could be talk about something called the “death spiral.” This is an argument that, without the mandate bringing new premium revenue into the coffers of health insurance companies, the new coverage obligations the Act lays upon them will drive them toward financial collapse. There may be a discussion of how some states that experimented with broader coverage without a mandate to produce more insured people found that the experiment was a failure.
It might be that some will talk of the Massachusetts experiment, which did couple new health insurance obligations with an individual mandate, and it worked – as well as setting up a model that the ACA borrowed. The Massachusetts plan is associated with former governor Mitt Romney, but whether his name comes into the hearing is doubtful, since that might seem like a commentary on his current presidential campaign. The Court will be wary of seeming to be interested in the politics of health care.
Making the final argument, before the challengers’ lawyer gets up for a brief rebuttal, will be the Court-appointed lawyer specifically assigned to make one overall point: that the entire remainder of the ACA can remain on the books, and would be functional, even without the mandate.
Congress, that lawyer will say, would not have wanted to put everything back to square one even if it knew the mandate would not survive in the courts. Along the way, this attorney will allude to the rarity of the Court’s use of its severability powers to remake a federal law, and will urge special caution in doing it this time.
The members of the Court will no doubt seek from this lawyer a detailed explanation of how the surviving parts would function, without setting off the feared “death spiral.”
Once that hearing, and the others the Court is holding next week, have concluded, the Justices will meet in a private deliberation room at least once, cast preliminary votes, and get started on the task of drafting one or more opinions to resolve all of the issues – if they conclude that they have to decide everything brought to them in this historic case. A final ruling, or rulings, is not likely to emerge until late June.
Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearing house of information about the Supreme Court’s work.