A very long day in the Supreme Court today with the severability argument this morning, and the expansion of medicaid under ObamaCare in the afternoon.
1. Severability-The severability issue came down to the question of, assuming that the individual mandate is determined to be unconstitutional, what parts, if any, of the remainder of ObamaCare could survive. The conservative jurists, plus Kennedy, from their questions seemed to argue that if the mandate is deemed to be unconstitutional, all of ObamaCare must fall. Justice Scalia raised the practical problem of the Court going through the thousands of pages of the ObamaCare legislation and picking out what portions can remain and what must be done away with if the mandate is unconstitutional. The liberal jurists argued that if the mandate is unconstitutional, only the parts of ObamaCare directly related to the mandate must be held to be unconstitutional. Reading judicial tea leaves is difficult, but I think there may well be 5 votes to rule all of ObamaCare unconstitutional, assuming that Justice Thomas, probably a given, votes with the conservative jurists.
2. Medicaid Expansion-This argument seemed to also go against the government. The conservative jurists and Kennedy seemed quite concerned about the federal government coercing the states to expand medicaid to cover more individuals. One of the many problematic features of ObamaCare has been the immense power grab by the Federal government that is at the very heart of ObamaCare, and that clearly troubled four jurists, Scalia, Alito, Roberts and Kennedy. Once again assuming that Justice Thomas votes to rule all of ObamaCare unconstitutional, almost certainly a safe assumption, the medicaid expansion will go down with the rest of ObamaCare.
The Court is expected to release its decision by the end of June.