On Wednesday, it was the Supreme Court’s turn to grapple with a reality
that the rest of the country has come to know all too well: the
political polarization of the modern Congress.
In considering whether they could strike the individual insurance mandate without overturning the entirety of President Obama’s healthcare law, the nine justices had to consider the likelihood that a divided Congress could fix a law once its core component had been taken out.
Yet with half the Congress pushing to repeal the law entirely and the other half wanting it to remain unchanged, the chances that lawmakers could quickly agree on a band-aid appeared slim.
It was a point not lost on the justices. When an attorney arguing before the court Wednesday began to discuss whether Congress would prefer keeping part of the law to having the entire act invalidated, Justice Anthony Kennedy, a potential swing vote, interjected to ask: “The real Congress or a hypothetical Congress?” The courtroom laughed.
Earlier in the argument, members of the court laughed knowingly when the attorney for the law’s opponents, Paul Clement, suggested that Congress could simply re-enact “in a couple days” portions of the law that were constitutional if the Supreme Court invalidated the whole measure.
“It won’t be a big deal,” he said, in an understatement that Chief Justice John Roberts Jr. quickly pointed out.
On Capitol Hill, there seemed to be little confidence among members of either party that Congress could easily revisit healthcare policy.
“I don’t think you could fix the bill if you strike the individual mandate,” a Democrat who voted for the law in 2010, Rep. Gerald Connolly (Va.), said. “I think the law falls, and you go back to the law of the jungle in America.”
Connolly said the Supreme Court should be responsible for fixing the law if it strikes the individual mandate. “That’s not our responsibility. We did our job,” he said.
The justices on the high court appeared none too eager to take on that task. Justice Antonin Scalia quipped that doing so would breach the Eighth Amendment’s prohibition on “cruel and unusual punishment.”
“You really want us to go through these 2,700 pages?” Scalia asked.
Democratic leaders have said they are not worried about the Supreme Court’s ruling and are confident the law will be upheld. The White House said it has no “contingency plans” if the individual mandate is struck.
"There's some discussion, quietly, among some people about what-ifs," Sen. John Kerry (D-Mass.) said Wednesday. "But there is no overall plan in place," he added, because Democrats are confident the mandate will be upheld.
Julian Pecquet contributed.