KHN Morning Briefing

Summaries of health policy coverage from major news organizations

High Court And Severability: What Parts Of The Law Could Fall?

On Wednesday, the nine justices pondered what parts -- if any -- of the health law could go forward if the individual mandate is overturned. The discussion involved fundamental consitutional questions.   

The New York Times: On Day 3, Justices Weigh What--Ifs Of Health Ruling
The justices seemed divided on both questions before them: What should happen to the rest of the law if the court strikes down its core provision? And was the law's expansion of the Medicaid program constitutional? The two arguments, over almost three hours, were by turns grave and giddy. They were also relentlessly pragmatic. The justices considered what sort of tasks it makes sense to assign to Congress, what kinds of interaction between federal and state officials are permissible and even the political character of the lawsuits challenging the law (Liptak, 3/28).

Politico: 5 Supreme Court Takeaways
After three days and six hours of arguments, a core provision in President Barack Obama's signature health law appears to be in serious danger. And Wednesday, it looked quite possible that the entire law could fall. But there's no ruling yet, and oral arguments can sometimes be deceptive. The real action will take place behind the scenes, when justices meet to discuss whether the law should survive (Gerstein and Haberkorn, 3/28).

NPR: Justices Ask: Can Health Law Stand If Mandate Fails?
The major arguments of the day were premised on a supposition. Suppose, asked the court, we do strike down the individual mandate — what other parts of the law, if any, should be allowed to stand? (Totenberg, 3/28).

Boston Globe: Court Appears Split On Future Of Health Law If Mandate Is Out
For Justice Elena Kagan, the question boiled down to "is half a loaf better than no loaf?" Paul Clement, a lawyer representing 26 states suing the federal government, argued that the entire law should go if the mandate falls. Congress, he said, should be granted a clean slate to fix the country's burgeoning health care problems, which include skyrocketing costs and tens of millions of uninsured. For Clement and those opposed to the law, there are instances in which half a loaf is worse (Jan, 3/28).

The Wall Street Journal: Justices Question Extent Of Federal Power
The Supreme Court ended three momentous days of argument Wednesday over the constitutionality of the Obama administration's signature health-care law, with opponents pushing their rhetoric into fundamental questions about the limits of Washington's power. Conservative justices suggested that if one part of the law is judged unconstitutional, the entire health overhaul with hundreds of provisions may have to fall with it. In the afternoon, the case took a twist that upended expectations, as the conservatives challenged the basis of the federal-state Medicaid program (Bravin, 3/28).

Bloomberg: Some Justices Suggest Preserving Part of Health-Care Law
Several U.S. Supreme Court justices suggested they may leave much of President Barack Obama's health-care law intact even if they strike down its core requirement that Americans buy insurance. "The bottom line is, why don't we let Congress fix it" instead of throwing out the entire law, said Justice Sonia Sotomayor during the third and final day of arguments on the health-care law. Chief Justice John Roberts and Justice Ruth Bader Ginsburg, ... said the law includes items, such as reauthorizing black-lung benefits and an Indian health-care measure, that aren't related to the individual health insurance mandate (Stohr and Asseo, 3/28).

Des Moines Register: Iowa Legal Experts On Health Care Arguments: Hard To Read Tea Leaves On Tossing Whole Law Vs. Parts
The Register invited three Iowa law school faculty members and an independent health law expert to listen to the oral arguments each day and offer perspectives. … Mark Kende, law professor, Drake University: "The arguments about severability and Medicaid are filled with irony and perhaps politics" (3/28).

Kaiser Health News has excerpted transcript highlights from Wednesday's oral arguments on the question of severability.

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