The Supreme Court spent 91 minutes Wednesday operating on the assumption that it would strike down the key feature of the new health care law, but may have convinced itself in the end not to do that because of just how hard it would be to decide what to do after that. A common reaction, across the bench, was that the Justices themselves did not want the onerous task of going through the remainder of the entire 2,700 pages of the law and deciding what to keep and what to throw out, and most seemed to think that should be left to Congress. They did not come together, however, on just what task they would send across the street for the lawmakers to perform. The net effect may well have shored up support for the individual insurance mandate itself.
Wednesday, March 28, 2012
Severability problems bending back to bolster the the minimum coverage provision?
Every so often, courts will choose a second-best outcome to a case, not because they think it is a great resolution to the matter, but because it allows them to avoid an even more difficult legal question. Lyle Denniston of SCOTUSblog is now reporting that the complications concerning the severability issue might have just that sort of effect here, and marginally push the Court (or at least Justice Kennedy) in the direction of upholding the individual mandate. Here is what Denniston writes, after just stepping outside the Court:
Posted by Bradley Joondeph at 9:07 AM