Justices Ponder Striking Down Entire Obamacare Package
The Supreme Court's conservative justices are hinting that they might strike down Obamacare because declaring the individual mandate unconstitutional would require nullifying the entire law.
"The court's conservatives said the law was passed as a package and must fall as a package," the Los Angeles Times reported.
Although the court is expected to rule by late June on the fate of the President Obama's signature legislation, Justice Antonin Scalia suggested even as the high court was hearing arguments that the decision might be a fait accompli.
"One way or another, Congress will have to revisit it in toto," Scalia said.
Similarly, Justice Anthony Kennedy said it would be an "extreme proposition" to permit the varied insurance regulations to remain if the mandate were struck down.
On the other hand, the court's liberal justices urged caution. Justice Ruth Bader Ginsburg said the court should do a "salvage job" instead of a "wrecking operation."
Chief Justice John Roberts Jr. and Justice Samuel Alito Jr. echoed Scalia and Kennedy's view that the law should stand or fall in total. They and Justice Clarence Thomas would have a majority to quash the entire law.
The law, which constitutes the U.S. healthcare system's biggest overhaul in nearly 50 years, seeks to provide health insurance to more than 30 million previously uninsured Americans and to slow down soaring medical costs.
The 26 of the 50 U.S. states challenging the law contend that the rest of Obama's healthcare overhaul must go if the court strikes the insurance requirement. Paul Clement, their advocate before the Supreme Court, told the justices that the so-called individual mandate to obtain insurance or face a penalty is "essential to the entire scheme."
In their questions, the liberal justices took issue with Clement.
"What's wrong with leaving this in the hands of those who should be fixing this?" said Justice Sandra Sotomayor, referring to Congress.
Roberts also spoke about parts of the law that "have nothing to do with any of the things we are" talking about.
But Clement said the court would be leaving "a hollow shell" if it decided to excise the several key provisions. "The rest of the law cannot stand," he argued.
Roberts and Kennedy also asked hard questions of Deputy Solicitor General Edwin Kneedler that indicated they are at least considering Clement's arguments.
Scalia suggested many members of Congress might not have voted for the bill without the central provisions, and he said the court should not go through each and every page to sort out what stays and what goes.
"What happened to the Eighth Amendment?" Scalia said, referring to the Constitution's ban on cruel and unusual punishment. "You really expect us to go through 2,700 pages?"
The outcome of the case will affect nearly all Americans and the ruling, expected in June, also could play a role in the presidential election campaign. Obama and congressional Democrats pushed for the law's passage two years ago, while Republicans, including all the GOP presidential candidates, oppose it strongly.
The conservative justices sharply and repeatedly questioned the validity of the insurance mandate.
If the government can force people to buy health insurance, justices wanted to know, can it require people to buy burial insurance? Cellphones? Broccoli?
The court focused on whether the mandate for Americans to have insurance "is a step beyond what our cases allow," in the words of Justice Kennedy.
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Posted: April 25, 2012