That's the big question. And moving from a riveting Day 2, Heritage Senior Legal Fellow Hans von Spakovsky fills us in on Day 3 of Supreme Court arguments:
The issue of severability was the leading argument...
WashingtonExaminer: Justices on the U.S. Supreme Court this morning considered what to do with the rest of President Obama's national health care law if its individual health insurance mandate is struck down. Though it was difficult to get a clear read on their thinking as they asked tough questions of all sides, the Court seemed open to the possibility of overturning the entire law.
Paul Clement, arguing for the 26 states challenging the law along with the National Federation of Independent Business, started off the arguments by suggesting the Court look at whether Congress would have passed the law without the individual mandate.
The more liberal justices argued that there were plenty of elements of the law that had nothing to do with the mandate.
Clement argued, however, that so many provisions of the law were so interconnected that if they got rid of all of them, they'd only be left will a hollowed out shell of a bill, which they never would have passed. He said it's called the "Patient Protection and Affordable Care Act" and the mandate is a key to what makes it affordable.
Deputy Solicitor General Edwin Kneedler, on behalf of the Obama administration, was arguing that only the ban on pre-existing conditions and cap on the cost of policies should be turned down if the mandate was gone. But interestingly, Justice Anthony Kennedy argued this could be seen as more “extreme” than simply striking down the whole law.
Let me make one correction... 'supposedly' affordable at the end of that fourth paragraph. In discussing the severability, Scalia confronted the unrealistic idea that the Court go through each provision of the 2700 page document and decide each one's fate (with the defense, again, laughed at).
Meanwhile, Jeffrey Toobin, referring yesterday to the defense of Obamacare and the law's fate as a "train wreck," today up's the ante to a "plane wreck," and says the individual mandate is "doomed."
However, there remains the lingering question: Will the body of Obamacare lurch on if the heart (i.e., the mandate) is ripped out? That monstrous zombie has yet to be determined.
ADDENDUM: Heritage's Todd Gaziano rejoins us for part II of Day 3:
