On Wednesday, March 28, the Supreme Court wrapped up three days of oral arguments related to the constitutionality of certain portions of the health care reform legislation. As noted in my immediately previous blog related to the arguments, the Court focused on two issues in this last day of argument including: (a) whether the entire health care reform legislation must be invalidated in the event that the individual mandate is struck down, and (b) whether the provision of the legislation that expands the Medicaid program, and thus increases the financial burdens imposed on the states under that program, is constitutional. These issues raise enormous concerns, although they may appear more than a bit anti-climatic after the day of argument focused on the constitutionality of the individual mandate (which of course is at the heart of the reform legislation).

On March 28, the Court first considered the issue of whether the entire health care reform legislation must be invalidated in the event that the individual mandate is struck down. The issue often is referred to as the severability issue (which to me always has conjured up an image of Marie Antoinette). While no lower court of appeals decision held that the entire legislation should be invalidated if the individual mandate was struck, the Court elected to consider the issue. Opponents of the legislation have argued that the entire legislation should be struck if the mandate is ruled to be unconstitutional. The Obama administration has argued that only certain provisions of the legislation (including certain guaranteed issue requirements and the prohibition against preexisting conditions — perhaps not coincidentally some of the most popular features in the legislation) would have to go.

It appears the Court struggled with determining the right standard by which to decide the severability issue. Justices from both ideological wings expressed considerable reluctance for wading through the legislation to decide what should stay and what should go (of course stories about the length of the legislation now have reached almost legendary proportions). Several justices also warned of unintended and negative consequences if the legislation was allowed to survive but the individual mandate was struck. Not surprisingly given the prevailing political dysfunction here in Washington, those justices seemed uncomfortable with the notion that Congress could effectively deal with any such negative consequences. On that basis, perhaps striking down the entire legislation would be preferable. On the other hand, other justices signaled a belief that dealing with these potential negative consequences is a job for the Congress and not for the courts.

It seems no consensus emerged on the severability issue. This debate is expected to carry over to the conference among the justices to first discuss the case in its totality, which could occur as early as this Friday, and predicting an outcome (even assuming they have to consider this question) is difficult. Many, but not all, observers came away from Wednesday’s arguments with the sense that at least a bare majority of the justices appeared disinclined to invalidate the entire legislation if the Court should strike down the mandate. Under this view, that majority would at least include the four members of the liberal wing of the Court and Chief Justice Roberts, who noted during the argument that many of the provisions in the legislation are not related to the mandate.

The Court then moved on to the issue of the expansion of the Medicaid program under the legislation – the last issue on the agenda. The challenge brought by the states here is based on an argument that the funding available under the legislation to help defray the cost of the expansion in effect improperly coerces compliance by the states. Some of the justices on the conservative wing of the justices expressed sympathy for the view that the states do not have an effective choice but to go along with the expansion, but Chief Roberts may have indicated some unwillingness to reopen this issue by noting that the states have complied with Medicare for decades and only now have brought this challenge (indeed the arguments made by the states could apply to the Medicaid program in its entirely and not just to its expansion here). Observers of the arguments have noted that the Court did not seem to spend much time attempting to define with specificity the level of coercion that would be needed to justify a decision to invalidate the expansion, and that fact may be a hint that the Court does not anticipate doing that. (If you’re interested, you can listen to yesterday’s oral arguments or download the transcrip from The Supreme Court’s website.) 

The arguments now are over. The debate moves to a quiet deliberation phase within the chambers of the justices as they seek a ruling around which they can build a majority (although this case inevitably calls for a series of concurring and dissenting opinions) and then move to complete the opinion. Most observers expect the Court to issue its opinion in this case by the end of the current term in June. But all is not lost. The baseball season starts soon, and so we will have something to distract us as we wait for the opinion.