UPDATE 2:31 PM See more updates at the bottom on the second set of arguments about Medicaid.
We’re getting the quick reports now.
There is just a 20 minute window for reporters at the court to file their dispatches from this morning’s arguments over whether the individual mandate to buy health insurance could be separated (and struck down) separately from the rest of the law.
In other words: if the court finds the mandate is unconstitutional, does just the mandate go away, or does the entire law fall with it?
Jeffrey Toobin tweeting from today’s Supreme Court hearing on Obama’s health care reform:
Over at SCOTUS Blog Tom Goldstein writes:
The Court is really struggling with severability. Generally speaking, the more conservative the member the more likely they were to believe that more would have to be invalidated. Justice Scalia would strike down the entire Act. Most likely would be guarantee issue, community rating and some other pieces essential to keeping insurance prices low. Tea leaves suggested that Justice Kennedy would vote to invalidate the mandate but nothing super-clear. Farr was excellent.
Reports on Twitter that Justice Anthony Kennedy, the key swing vote has been arguing that it may be more extreme of the Court to pick and choose which parts of the law are unconstitutional:
More updates from SCOTUSBlog’s Amy Howe:
We are roughly two-thirds of the way through the severability argument. The government’s lawyer was finishing up when I left the building. So far it is hard to see where this one is going. Almost all of the Justices asked Clement questions, and many were sceptical of his argument that if the mandate and the provisions link to it go, all that would be left is a hollow shell.
But Ed Kneedler also faced sceptical questions, especially from the more conservative Justices, who asked him how the Court should figure out what other provisions must go. Are we supposed to go through the whole 2700 pages, they asked? (Justice Scalia suggested that this would violate the Eighth Amendment.)
We have one dissenting opinion on how it went for Health-care reform, via SCOTUSblog’s Lyle Denniston:
The Supreme Court spent 91 minutes Wednesday operating on the assumption that it would strike down the key feature of the new health care law, but may have convinced itself in the end not to do that because of just how hard it would be to decide what to do after that. A common reaction, across the bench, was that the Justices themselves did not want the onerous task of going through the remainder of the entire 2,700 pages of the law and deciding what to keep and what to throw out, and most seemed to think that should be left to Congress. They did not come together, however, on just what task they would send across the street for the lawmakers to perform. The net effect may well have shored up support for the individual insurance mandate itself.
Reason magazine’s Damon Root sums up the reactions of the different justices to the severability argument:
From Denniston again:
We find out this juicy tidbit about how the Court was wrestling with whether to strike the whole thing down or not:
The dilemma could be captured perfectly in two separate comments by Justice Antonin Scalia — first, that it “just couldn’t be right” that all of the myriad provisions of the law unrelated to the mandate had to fall with it, but, later, that if the Court were to strike out the mandate, “then the statute’s gone.”
It seems as if all the reporters have run in after their 20 minute window to hear Round 2 of today’s arguments, which concern the expansion of Medicaid.
Reporters are just now filing out of today’s second round of arguments, about whether the Federal government can withhold money from the states if they refuse to expand Medicaid coverage.
And they are very uncertain about how it went.
The consensus take is that it seemed not entirely like that the Supreme Court would strike down Medicaid expansion by itself. But this program would go if they strike down the entire law.
Here’s Toobin again:
The liberals are more confident about how this hour went. Adam Serwer tweets:
Kagan probably was holding things from going too far, according to this tweet from Damon Root.
Philip Klein on what may become the most memorable line of the argument.
Once again, Damon Root gives great characterizations of how the arguments were received and challenged by the Court.
Listen below to Justice Sotomayor going after Paul Clement, the attorney representing 26 states opposing the 2010 law:
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