Day three of the epic SCOTUS showdown over President Obama’s health care law focused on severability — the question of whether the entire law is unconstitutional if a part of the law (in this case, the individual mandate) is found to be unconstitutional.
Paul Clement, the attorney for the states challenging the law, argued that if one part of the law is found unconstitutional, then the entire law is unconstitutional.
Moderate, Republican-appointed and often-key-swing-voting Justice Anthony Kennedy seemed to agree with the law’s challengers on this point during an exchange with the government’s lawyer, Deputy Solicitor General Edwin Kneedler:
MR. KNEEDLER: We think as a matter of judicial restraint, limits on equitable remedial power limit this Court to addressing the provision that has been challenged as unconstitutional and anything else that the plaintiff seeks as relief…
JUSTICE KENNEDY: When you say judicial restraint, you are echoing the earlier premise that it increases the judicial power if the judiciary strikes down other provisions of the Act. I suggest to you it might be quite the opposite. We would be exercising the judicial power if one Act was – one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended. 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.
MR. KNEEDLER: I – I – I think not –
JUSTICE KENNEDY: I just don’t accept the premise.
So it looks like we’re shaping up for an all-or-nothing decision. Does that make SCOTUS more likely to uphold the law or declare it unconstitutional? Stay tuned for June.