As the third and final day of the oral arguments over Health Care Reform in the Supreme Court closed, the uncertainty over the Court’s anticipated decision grows even stronger. Many believe that the law is in jeopardy over the constitutionality of the individual mandate, the provision requiring all Americans to purchase health insurance. And the third day of arguments made it clear that if the individual mandate fails, there is a strong likelihood that the entire ACA will fall with it.
Day three kicked off with arguments around the severability issue of whether the ACA can remain in action if individual elements of it are deemed unconstitutional, specifically the individual mandate provision. As oral arguments and questioning developed, it quickly became clear that the Court is stuck on their political divisions.
Liberal Justices who support the ACA argued that there are too many vital elements of the law to be thrown out if one element fails, while conservative Justices questioned how Congress can salvage the law if central elements are picked apart.
“Is half a loaf better than no loaf? And on something like the [health insurance marketplace] exchanges it seems to me a perfect example where half a loaf is better than no loaf. The exchanges will do something.” – Justice Elena Kagan
Justice Anthony Kennedy, who has emerged as the potential swing vote in the decision, stated that the Court runs the risk of exerting too much power if it rules that the ACA can stand without individual elements, as there is a potential for “catastrophic consequences” on the health insurance industry that were never intended by Congress.
“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.” – Justice Anthony Kennedy
The second half of the day heard arguments over the constitutionality of Congress’ expansion of the Medicaid program that would require states to provide coverage for all individuals under age 65 with income up to 133 percent of the poverty level.
The division between the liberal and conservative justices continued, with Justice Kagan questioning why the states should be concerned over receiving “a boatload of Federal money.” Chief Justice Roberts countered by underlining the intrusion of the federal government into the states, a key issue for conservatives.
With oral arguments over, the focus now is on the anticipation of the ruling. The liberal/conservative divisions are clearly established and a 5 to 4 decision is becoming increasingly likely. Should that be the case, many are anticipating that, regardless of whether the ACA will be upheld or not, it will be a bitter pill to swallow for either side of the political aisle.
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