Health care debate: Wrecking ball or remodeling?

Gregory Warner Mar 28, 2012

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.

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