Some Supreme Court justices generally regarded as being likely to reject the Patient Protection and Affordable Care Act of 2010 (PPACA) individual mandate provision were expressing uncertainty today about when and why they should strike down an entire law because they have struck down part of the law.
The court was holding its third and last day of oral arguments on the constitutionality of the law.
Oral arguments on “severability” have ended, and the court is now hearing arguments about the constitutionality of a PPACA provision that would require states to expand Medicaid programs.
PPACA supporters believe the effort to uphold the law has 4 firm votes. Some are saying Justice Anthony Kennedy may be the Obama administration’s best hope of rounding up a fifth vote.
We’ve embedded links to the PDF of the transcript and the court’s audio recording of the oral arguments on severability, for NFIB vs. Sebelius (Case Number 11-393), here, so that you can read it for yourself and come to your own conclusions about how the day went and whether one side or the other has rounded up the support of 5 or more of the 9 justices.
For up-to-the-minute coverage of the Supreme Court oral arguments on PPACA, visit www.lifehealthpro.com/PPACA
The PPACA individual mandate provision calls for many individuals to have health coverage in 2014 or else pay a penalty.
Some have argued that the court must strike all of PPACA if it knocks out any part of the act, because Congress included no “severability clause,” or provision declaring that the act as a whole remains valid if part of the act is tossed out.
Kennedy seemed to express frustration with lawyers for both sides as the day went on.
Paul Clement, a lawyer representing the states that have sued to block implementation of PPACA, made the argument that the court should invalidate most or all of the rest of the act if it rejects the individual coverage mandate.
Kennedy asked what test Clement would have the court use to decide when it can kill just part of a law or when it must kill the entire law.
“Is it whether as a rational matter separate parts could still function, or does it focus on the intent of the Congress?” Kennedy asked.