by Jonathan Ingram
Today was the final marathon session of oral arguments over ObamaCare. It began this morning with the question of what to do with the rest of the law if the individual mandate is struck down, a very real possibility after yesterday’s hearing.
On this issue, both sides agree that if the mandate falls, at least some of the other provisions must fall with it. Most of the Justices seemed skeptical that the entire law should be thrown out, but where to draw the line was a question the Court was clearly struggling with.
Some of the justices hinted that the difficulty in drawing that line could mean disaster for the whole law. Others noted that the Court has never struck down the heart of a statute but left an empty shell. At one point, Justice Kennedy expressed his concern that it might be worse to pick and choose which parts to strike down than to just overturn the whole law. Justice Scalia joked that forcing the Court to go through the law’s thousands of pages and provisions one by one would be cruel and unusual punishment.
The day ended with the question of whether the President can force states to expand their Medicaid programs to millions of new enrollees. As I explained earlier this week, Medicaid expansions have already failed the most vulnerable populations in Illinois, and ObamaCare is only going to make the problem worse.
The four liberal justices appeared highly critical of the state’s argument that conditioning pre-existing Medicaid funding on new expansions is too coercive. The conservative justices also expressed some skepticism that the forced expansion was unconstitutional, though they did press the administration to define the outer limits of that power. The states’ argument that the expansion is coercive did get some traction with at least a few of the justices, but there was no clear indication that the justices believed that the coercion was undue. At one point, Chief Justice Roberts suggested that the states might have already given up some of their sovereignty by accepting Medicaid and other federal funding with strings attached.
The justices will begin writing their opinions starting Friday, but the Court is not expected to finalize an opinion until June. If you missed the oral arguments earlier this week, you can read our coverage from Monday and Tuesday. You can also listen to the audio or read the transcript on both the severability and Medicaid issues on the Supreme Court’s website.