Mandate debacle sharpens focus on high court's final day severability debate

The Supreme Court will wrap up its historic healthcare arguments Wednesday, and the day’s debate could have new significance in the wake of the justices’ aggressive questioning on Tuesday.

The court will begin its final day with arguments over “severability” — how much of the healthcare law should fall if the justices decide that the individual mandate is unconstitutional.

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The court will also hear arguments over the healthcare law’s Medicaid expansion, which is widely seen as the weakest part of the lawsuit against healthcare reform.

Severability could be key to the court’s ultimate decision. The debate might see a higher profile after Tuesday’s session, when the court’s potential swing votes indicated that they’re skeptical the insurance mandate is constitutional.

If the justices strike down the coverage requirement, the severability debate will determine whether they throw out the entire healthcare law or just part of it.

The 26 states that filed the legal challenge say the court should ax the entire law, arguing that Congress wouldn’t have passed the larger package of insurance reforms without a mandate.

The Justice Department says there’s no need to scrap the entire law, but agrees that certain provisions can’t be separated from the mandate. If the mandate is unconstitutional, the administration says, the court should also strike two other policies — requiring insurers to cover everyone, and barring them from charging higher prices for sick patients.

The court had to appoint an outside lawyer to argue that the mandate is completely severable from the rest of the law.


The Hill's Supreme Court coverage:
• AUDIO & TRANSCRIPT: Day 2 arguments
• Toobin: Healthcare law 'in grave, grave trouble'
• Reid: 'I’ve been in court a lot more than Jeffrey Toobin'
• Kennedy among mandate skeptics
• GOP up, Dems down after mandate talk
• GOP leaders not predicting SCOTUS healthcare decision
• Bachmann: We haven't raised 'white flag of surrender'
• GOP doctors decry health law's 'very bad medicine'
• AUDIO: Alito questions mandate as a tax


The court will spend 90 minutes on the severability debate Wednesday morning, then reconvene in the afternoon for an hour-long debate on Medicaid.

Medicaid is, legally, a voluntary program operated jointly by states and the federal government. But the 26 states that filed the healthcare suit say the new expansion of the program amounts to “coercion.”

The healthcare law expands Medicaid eligibility to everyone at or below 133 percent of the federal poverty line. The federal government will pick up all of the added cost for the first few years, but states have to adopt the new eligibility levels if they want to remain in Medicaid.

The states say the new rules make it effectively impossible for them to exercise their legal right to opt out of the program.

Legal experts on both sides of the healthcare debate were surprised the Supreme Court agreed to hear the states’ Medicaid claim. The argument was rejected in both of the lower courts that heard it, and both of those courts also ruled that the individual mandate is unconstitutional.