Not a train wreck, but a plane crash?
That’s what Jeff Toobin now says.
See Hot Air:
What seems interesting from these exchanges was that the justices seem to have gotten past the notion of explicit severability and had taken a utilitarian look at whether the consequences of ending the individual mandate necessitated a broader rejection of the PPACA.
One thing is that I don’t trust liberals as far as prognostication. They haughtily dismissed these arguments previously, deciding to not even bother reading or considering the arguments. It would be 8-1 or 7-2 to uphold. These stupid conservatives. Don’t they know they’re so extreme that the more educated versions of them, on the Supreme Court, laugh at their silly ideas?
But now that that cockiness has been rubbished, they’re overreacting the other way, assuming the whole law is gone. Their worlds are spinning, so their bearings are a little off.
The main thing is this: if inaction can count as commerce, there’s nothing the federal congress can’t regulate. Which is why the mandate has to go. But if the mandate goes, the whole bill except for the incidentals probably has to go as well. One thing follows from the other.
But that’s kind of big.
The court’s conservatives sounded as though they had determined for themselves that the 2,700-page measure must be declared unconstitutional.
“One way or another, Congress will have to revisit it in toto,” said Justice Antonin Scalia.
Agreeing, Justice Anthony Kennedy said it would be an “extreme proposition” to allow the various insurance regulations to stand after the mandate was struck down.
Meanwhile, the court’s liberal justices argued for restraint. Justice Ruth Bader Ginsburg said the court should do a “salvage job,” not undertake a “wrecking operation.” But she looked to be out-voted.
Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. said they shared the view of Scalia and Kennedy that the law should stand or fall in total. Along with Justice Clarence Thomas, they would have a majority to strike down the entire statute as unconstitutional.
It’s not impossible that one of the conservatives will blanch at this and uphold the whole thing, and that the Chief Justice would then switch to the majority in order to narrow the verdict — the law, mandate and all, could survive in a 6-3 vote.
But we could see a 5-4 verdict that wipes out the entire bill.
Wouldn’t that be something?
Update: See also today’s Best of the Web.
What may decide this is, what’s less messy? Leaving this mess of a bill in place, cutting out the mandate but leaving most of the rest intact, or telling Congress that the whole thing is gone and they should try again from the start.
Personally, I think demolishing the whole thing is the way to go. This isn’t like the New Deal, which passed with 70% bipartisan support — ObamaCare passed with a popular majority opposing it, it’s probably unconstitutional, and a popular majority supports repeal. It would only survive by virtue of filibuster and presidential fiat.
So it seems far less messy just to tell the President and Congress to try again, and respect the Constitution this time.
But we’ll see.