Day three recap: Severability on trial

Written by Evan Paskach on .

we the peopleSeverability and Medicaid expansion were the two topics debated before the Supreme Court on Wednesday, the third and final day of oral arguments.

Paul Clement, representing the 26 states that have filed suit against the Affordable Care Act, argued that if the individual mandate is found to be unconstitutional, the entire law also must be struck down. The federal health care law without the individual mandate, as Clement said, is just a “hollow shell.”

 Justice Antonin Scalia and others have referred to the mandate as the “heart” of the law, rejecting Deputy Solicitor General Kneedler’s argument that Congress could fix the portions of the law untouched by the courts.

Justice Scalia downplayed that idea, saying:  “Mr. Kneedler, what happened to the Eighth Amendment? You really want us to go through these 2,700 pages? And do you really expect the Court to do that?  Or do you expect us to give this function to our law clerks? Is this not totally unrealistic?  That we’re going to go through this enormous bill item by item and decide each one?”

Another argument offered by the United States was that the Court should practice judicial restraint when considering the severability of the law and individual mandate. Justice Anthony Kennedy noted that the premise raised by the Deputy Solicitor General was actually backwards.

“We would be exercising the judicial power if…one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended,” said Justice Kennedy. “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…striking the whole [law].”

Experts have weighed in on multiple angles of the debate and view the prospect of the entire law being struck down as a possibility. A decision is expected sometime in June.

For audio recordings of all three days of argument, visit

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