It is probably not the case that the Supreme Court is poised to strike down the entire Affordable Care Act if it finds just one provision of it unconstitutional. Among other things, after conservative superlawyer Paul Clement spent nearly twenty minutes trying to convince a skeptical panel of judges that the whole law must fall, his conservative ally Justice Alito asked Clement a question no advocate ever wants to hear: “What would your fallback position be if we don’t accept the proposition that if the mandate is declared unconstitutional” the entire statute must fall? Apparently, even the Supreme Court’s right flank was considering other options besides Clement’s overreaching theory.
Unfortunately, however, the justices gave his proposal far more credit than it actually deserves. Under longstanding law, a court may not invalidate any constitutional part of a law unless it is “evident” that Congress would have preferred no law to some law. Yet the justices peppered the law’s defenders with uncertain questions about how they should proceed — with Scalia finally outright saying he would simply eliminate President Obama’s signature accomplishment altogether. Every single one of these questions were inappropriate. Given the exceedingly high presumption in favor of retaining as much of the law as possible, the justices must resolve any of their uncertainties in favor of the Affordable Care Act.
The Court’s conservatives did not get this. Worse, Justice Kennedy at one point seemed to suggest the Court’s duty was to resolve any uncertainties in favor of the insurance industry:
When you say judicial restraint, you are echoing the earlier premise that it increases the judicial power if the judiciary strikes down other provisions of the Act. I suggest to you it might be quite the opposite. We would be exercising the judicial power if one Act was — one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended.
To be fair, it is not entirely clear how Kennedy’s fears cut, and as Lyle Denniston suggests, they could ultimately wind up saving the law. If Kennedy is genuinely concerned that any decision striking down the individual mandate will risk nuking the insurance industry, he could ultimately conclude that the least worst outcome is simply to uphold the entire law. Indeed, the problems created by trying to remove just one provision from a comprehensive economic regulatory scheme demonstrate the wisdom of a decision Kennedy previously joined saying that the justices should not generally be in the business of doing so.
If they ultimately decide to throw out the entire law, however, the result will be bedlam. Much of the Affordable Care Act has already taken effect, and cannot simply be stopped on a dime tomorrow:
- Stripping Young People of Care: At least 2.5 million young people now have insurance because of the Affordable Care Act. All of them would be cast back into the wilderness if the whole law were struck down.
- Blowing Up Medicare: Approximately 100 million Medicare claims are processed each month using a formula that was altered by the Affordable Care Act. If the entire law were struck down, new rates could not be calculated under the old, pre-ACA formula until after a rulemaking process that can take months before is completed. The result would be massive delays in payments to health providers throughout the country.
- Pulling The Rug Out On Retirees: The Affordable Care Act also provides thousands of Americans the opportunity to retire early and still remain insured until they become eligible for Medicare. Striking down the entire law could yank insurance away from many near-elderly Americans who retired solely because of the promise that the Affordable Care Act would be there for them.
- Ungrateful States: Many of the states that are currently challenging the law have nonetheless accepted millions of dollars worth of grants under the Affordable Care Act. If the law is struck down, it’s likely that this money would need to be returned immediately, further stressing already tight state budgets.
Simply put, today should have taught the justices a lesson. There is a reason why the Constitution leaves difficult questions of economic policy to elected officials and not to unelected judges. These choices are difficult, they are not easily unwound and they should be made by someone who actually has a mandate from the people to make them.