Health care debate: Wrecking ball or remodeling?

Outside the Supreme Court on the third day of hearings on the health care reform law.

Kai Ryssdal: You want to boil a day's worth of high-priced lawyering down to one sentence? Here it is.

Paul Clement: Mr. Chief Justice, and may it please the Court, if the individual mandate is unconstitutional, then the rest of the act cannot stand.

That was Paul Clement this morning, the lawyer for the 26 states and the business groups that're challenging the health care law. The topic at hand today was what lawyers like to call severability: What happens to the 2,600 other pages of the law if the individual mandate, the requirement that most everyone has to buy health insurance, is struck down.

Marketplace's Gregory Warner was in the courtroom today, as he has been all week. Hey Gregory.

Gregory Warner: Hey there, Kai.

Ryssdal: How are you holding up, man? Day three.

Warner: Trying, trying. Look, I will say that at 7 this morning, the scalpers were charging $150 a ticket.

Ryssdal: To get in?

Warner: Although that's down from $300 yesterday.

Ryssdal: $300?

Warner: Interest might be flagging.

Ryssdal: So if you paid your $150 today, what would you have seen?

Warner: Well today was the question: If the court strikes down the individual mandate, how much of the rest of the law do they have to get rid of? And as Justice Ruth Bader Ginsburg put it, the question is this: Should the Court do a wrecking operation or a salvage job? Meaning: Do they kick this back to the legislature to fix, or do they just scrap the whole thing?

Justice Ruth Bader Ginsburg: And the more conservative approach would be salvage rather than throwing out everything.

Ryssdal: So this is Justice Ginsburg, a liberal Justice, asking about the conservative approach, right? Is this the conservative approach, then, remodeling rather than just chucking the whole thing?

Warner: Well you know, no. One of the wrecking ball arguments that conservative Justices really seem to take seriously was the economic one. The individual mandate is estimated to raise $350 billion over the next 10 years. So if the insurance industry isn't going to get that money, how can we expect them to pay for reforms like letting in more sick people? The funny thing is, the states apply this argument even to reforms like Medicare, that have no direct connection to that money at all -- they say toss those too. And maybe the wrecking ball argument for that was expressed by Justice Scalia in that the court can't trust Congress to remodel -- it's just better to bulldoze the house and start from scratch. And here he's throwing the question to the lawyer of the states, Paul Clement.

Justice Antonin Scalia: There's such a thing as legislative inertia, isn't there?

Clement: Well that's exactly what I was going to say, Justice Scalia, which is I think the question for this Court is -- we all recognize there's legislative inertia -- and then the question is: What's the best result in light of that reality?

Justice Sonia Sotomayor: Suggesting that we should take on more power to the Court?

So there's Justice Sotomayor arguing for remodeling, saying hey, we can't throw out this mandate -- it's the job of voters, not judges.

Ryssdal: So to be clear, the question, it seems to be, before the Court today was: Do we declare the entire thing unconstitutional if the individual mandate falls, or do we let Congress have another whack and try to fix it, try to remodel or rehabilitate, right?

Warner: Right. And there were parts of that question -- so the one question was: Do they slice out just the individual mandate, and the furthest extreme of that question is, do they get rid of the whole bill? It's worth a mention that wiping out the whole bill would have enormous consequences right now, because there are already millions of people who have insurance because of this bill. And then on this question of do you wipe out the individual mandate, you know, as we talked about yesterday, this is what we've been debating, this health-care-for-all question for the last 100 years.

So now, the nine Justices are going to cast their votes this week. And I don't want to make this too dramatic, but it is -- they're going to spend the next three months deliberating, they're going to come out with their decision maybe late June or early July. And I get the sense watching these six-and-a-half hours of debate that the Court is struggling not only with the enormous economic consequences of this decision, but actually with the political role that the Court is going to take from here on out.

Ryssdal: Gregory Warner, he's been in the Supreme Court the past three days, talking to us about the health care reform bill, and the challenges to it. Gregory, thanks a lot man.

Warner: Thanks Kai.

About the author

Gregory Warner is a senior reporter covering the economics and business of healthcare for the entire Marketplace portfolio.
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I have been disappointed to listen to Mr. Warner's coverage of the health care bill. In his zeal to make it accessible, he has missed sight of how radical a position is being advanced by so called "conservatives." The mandate is based on the commerce clause which, for over 70 years, has been held to allow Congress to manage any part of the economy, provided the law is otherwise constitutional. The clause has been used to promote standards for commerce, to enforce civil rights laws and now it is focused on health care. It is a radical notion to reshape the commerce clause to blunt the reach of the health care law. If the opponents are successful that is, if a radical core of Justices agree, they may set back constitutional law decades - all with unknown consequences for economic activity.

The real issue being debated on the third day is whether the radical core will feel constrained by stare decisis (the law of the case or precedent) or plot a new path. Conservatives generally only act in the narrowest way possible; conservatives give full measure to the "equal' branches of government. Justice Scalia's argument - a radical notion that is usually rejected by conservatives - is that the Court may reject legislation it does not like.

This sort of judicial arrogance was roundly rejected at various times in Constitutional history. When the New Deal legislation was rejected by the Court, it took a concerted effort to get the Court to adopt a more measured approach. As recently as the 1980's, Raoul Berger, a conservative Harvard Law Professor, castigated the Court for becoming "A Government by the Judiciary."

Now radicals want to reshape jurisprudence in a new image. That is a very unconservative notion - one that Edmund Burke would have rejected.

Health care has lost its way in America. The intent is to promote public health and build relationships between providers and patients. In turn, doctors and patients work in concert to keep patients in good health. We ask questions, get second opinions and decide what's best for us individually. But today it's become so complicated and expensive that many are forced out. If the court strikes down all or part of this law it could mean many more years of health care uncertainty. http://whatstherealcost.org/video.php?post=five-questions

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