Health care man­date wob­bly leg to stand on

Jus­tices de­bate all or noth­ing

The Washington Times Daily - - Front Page - BY PAIGE WIN­FIELD CUN­NING­HAM

Wrap­ping up a three-day marathon of oral ar­gu­ments about Pres­i­dent Obama’s health care over­haul, the Supreme Court heard ar­gu­ments Wed­nes­day on whether the rest of the law can stand on its own if the jus­tices were to strike down the in­di­vid­ual man­date re­quir­ing Amer­i­cans to pur­chase in­sur­ance.

The nine jus­tices seemed to agree that carv­ing out the man­date would dra­mat­i­cally al­ter much of the law but dis­agreed on which route to take, with Re­pub­li­can-ap­pointed judges ap­pear­ing to lean to­ward scrap­ping the whole thing while Demo­crat-ap­pointed judges said that’s a decision for Congress to make.

“It’s a choice be­tween a wreck­ing op­er­a­tion, which is what you are re­quest­ing, or a sal­vage job,” Jus­tice Ruth Bader Gins­burg told Paul Clement, an

at­tor­ney for the states seek­ing to have the Af­ford­able Care Act tossed out in its en­tirety. The more con­ser­va­tive ap­proach, Jus­tice Gins­burg said, would be to sal­vage, “rather than throw­ing out ev­ery­thing.”

The hear­ings on Mr. Obama’s sig­na­ture do­mes­tic achieve­ment kicked off Mon­day with the jus­tices con­sid­er­ing whether a 19th cen­tury tax law blocks them from de­cid­ing on the man­date un­til later, while on Tues­day they heard ar­gu­ments on whether the man­date it­self is con­sti­tu­tional.

On Wed­nes­day, they heard 26 states’ chal­lenge to the law’s mas­sive ex­pan­sion of Med­i­caid, as well as ar­gu­ments about whether the in­di­vid­ual man­date is so cru­cial that the rest of the law can­not sur­vive with­out it.

Both the ad­min­is­tra­tion and the chal­lengers agree at least two parts of the law need the man­date in or­der to work, but they dis­agreed on whether to throw the rest of the law out, too.

The two de­pen­dent parts re­quire in­sur­ance com­pa­nies to cover any­one re­gard­less of their age or how healthy they are. As in­sur­ers add sicker and older Amer­i­cans onto their rolls, they are likely to face dra­matic losses if they don’t also have healthy folks pay­ing in, both sides say.

Mr. Clement said the court should ditch the en­tire law, but the ad­min­is­tra­tion points to dozens of other mea­sures that ar­guably could stand on their own, such as in­sur­ance ex­changes and tax cred­its for buy­ing in­sur­ance.

Much of the ar­gu­ment cen­tered on what Congress in­tended when it passed the health care law.

Mr. Clement ar­gued that law­mak­ers meant to tie all of it to the man­date, since they re­moved lan­guage from an ear­lier ver­sion that ex­plic­itly al­lowed parts to be sev­ered. But Deputy Solic­i­tor Gen­eral Ed­win Kneedler coun­tered that it’s not the court’s job to fig­ure out what Congress in­tended to do.

The chal­lengers seems to have a cham­pion in Jus­tice An­tonin Scalia. “Once you cut the guts out of it, who knows which parts were de­sired and which ones weren’t?” he said.

Jus­tice Scalia said that if the court strikes the man­date, it will end up dis­tort­ing Congress’ orig­i­nal in­tent, con­clud­ing that the court should just wipe the slate clean so law­mak­ers can start over. Jus­tice An­thony M. Kennedy seemed to agree, sug­gest­ing that strik­ing the man­date but leav­ing the rest of the law would re­sult in a sit­u­a­tion Congress never in­tended with in­sur­ers un­duly bur­dened.

“That can be ar­gued to be a more ex­treme ex­er­cise of ju­di­cial power,” he said.

Jus­tice So­nia So­tomayor agreed, but sug­gested an op­po­site con­clu­sion: The court should leave the rest of the law up to Congress.

“Why should we in­volve the court in mak­ing the leg­isla­tive judg­ment?” she said.

Jus­tice Stephen G. Breyer also took is­sue with strik­ing the rest of the law, at one point wav­ing two stacks of pa­per in the air. He said the smaller stack con­tained pro­vi­sions re­lated to the in­di­vid­ual man­date, while the larger one con­tained the rest of the law.

“I would say the Breast Feed­ing Act, the get­ting doc­tors to serve un­der­served ar­eas, the biosim­i­lar thing and drug reg­u­la­tion, the Class Act, those have noth­ing to do with the stuff we’ve been talk­ing about yes­ter­day and the day be­fore, OK?” he said.

Later Wed­nes­day, the jus­tices grap­pled with the Medi­care ex­pan­sion pro­vi­sions, which 26 states have chal­lenged.

They ar­gue that it is co­er­cive for the fed­eral gov­ern­ment to say bil­lions of dol­lars in new Med­i­caid fund­ing are avail­able only if states add mil­lions of new ben­e­fi­cia­ries. The ad­min­is­tra­tion says states are free to re­ject the ex­pan­sion, but the states say that’s vir­tu­ally im­pos­si­ble be­cause so much fed­eral money is at stake.

Jus­tice Scalia seemed to agree with the states, com­par­ing the choice to be­ing asked “for your money or your life” — an of­fer no one can refuse.

But Demo­crat-ap­pointed jus­tices ap­peared deeply skep­ti­cal of the claim that states are be­ing co­erced into ac­cept­ing fed­eral money just be­cause there’s a lot of it.

“Why is a big gift from the fed­eral gov­ern­ment a mat­ter of co­er­cion?” Jus­tice Elena Ka­gan asked Mr. Clement. “It doesn’t sound co­er­cive to me, I have to tell ya.”

Mr. Clement tried to draw a dis­tinc­tion be­tween the Med­i­caid ex­pan­sion un­der the health care law and times in the past when the gov­ern­ment has ex­panded the pro­gram, say­ing this ex­pan­sion is more “breath­tak­ing” in its scope than ever be­fore.

But Solic­i­tor Gen­eral Don­ald B. Ver­rilli Jr., ar­gu­ing for the ad­min­is­tra­tion, said that un­der that rea­son­ing, the Med­i­caid pro­gram could have been deemed un­con­sti­tu­tional a long time ago.

Jus­tice Kennedy, a fre­quent swing vote on the court, agreed that a line needs to be drawn some­where.

“A point of be­ing ‘too big’ could be when ac­count­abil­ity is lost,” Jus­tice Kennedy said, also ex­press­ing con­cern that the states will have to take on more ad­min­is­tra­tion ex­penses if they ac­cept the ex­tra Med­i­caid dol­lars.

AS­SO­CI­ATED PRESS

Pope Bene­dict XVI meets with Fidel Cas­tro in Ha­vana on Wed­nes­day. Mr. Cas­tro asked the pon­tiff about changes in church liturgy and his role as spir­i­tual leader of the world’s Catholics. Story, A11.

ROD LAMKEY JR./THE WASHINGTON TIMES

Su­san Clark of Santa Mon­ica, Calif., states her po­si­tion on the health care law as the podium used for the Tea Party Pa­tri­ots rally is wheeled away in front of the Supreme Court on Wed­nes­day. The high court heard three days of ar­gu­ments for and against sev­eral pro­vi­sions of the mas­sive bill.

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