March 28, 2012

The ideological nature of the health care case was obvious on the last day of oral argument. By the time the proceedings were over, much of what the conservative justices said in court seemed like part of a politically driven exercise — especially because the issues addressed on Wednesday were not largely constitutional in nature. In fact, they were the kinds of policy questions that are properly left to Congress and state governments to answer, not the Supreme Court. The court heard arguments on the issue of “severability” — the question of what should happen with the rest of the 2,700-page statute if the requirement that most Americans obtain health insurance is struck down. The insurance mandate was effectively reduced to a bumper sticker by the opponents in their constitutional challenge, and the entire law reduced to little more than an appendage to the mandate. “My approach would be to say that if you take the heart out of the statute, the statute’s gone,” Justice Antonin Scalia said, a position held by the law’s opponents, who want to demolish the whole thing. But H. Bartow Farr III, the lawyer appointed by the court to argue for upholding all other parts of the law if the mandate falls, showed how careless and wrong that view is. His presentation compellingly explained what Congress actually passed: a thoughtfully constructed, comprehensive solution to the enormous problems of insufficient insurance coverage and ever-mounting costs of health care. As Mr. Farr made clear, the fate of the mandate should not determine the survival of the other elements of the law — like prohibiting insurers from denying coverage to people with pre-existing conditions or charging them higher fees — which can operate without the mandate. Under general principles, courts must avoid nullifying more of a law than is necessary. Justice Anthony Kennedy suggested that it would be more extreme to preserve part of the statute than to strike down the whole thing because that would alter Congress’s intent. He could avoid this problem by upholding the mandate. The last issue before the court was the law’s expansion of Medicaid, which will be financed mostly by federal funds. The challengers contend the expansion coerces them to cover more poor people and that the penalty for refusing to do so would be a cutoff of federal money. This is a bizarre view that treats Medicaid, a voluntary federal-state partnership, as an affront to state sovereignty. There is no legitimate constitutional question on this issue. It is disturbing that the conservative justices seriously entertained the opponents’ argument. But it does fit perfectly into the judicial activism of the right wing.