During the long, painful debate that led to the passage of Obamacare, Republican lawmakers made a single request of their colleagues, the press and the public: Please read the 2,700-page bill. That request was mostly ignored, even by many of the members of Congress who voted for what became the Patient Protection and Affordable Care Act.
Now, it’s someone else’s turn not to read the bill. In oral arguments before the Supreme Court recently, some justices made it abundantly clear that they, too, haven’t read the entire law, even if they are considering a constitutional question that could kill the whole thing.
“I haven’t read every word of that, I promise,” Justice Stephen Breyer said to a lawyer arguing the case. “So what do you propose that we do other than spend a year reading all this?”
“What happened to the Eighth Amendment?” Justice Antonin Scalia erupted after a lawyer suggested the justices might go through the bill and decide which parts were constitutional. The Eighth Amendment prohibits cruel and unusual punishment, and Scalia clearly thought reading the entire law would qualify. “You really want us to go through these 2,700 pages?” he asked the lawyer. “And do you really expect the court to do that?”
As for his part, Chief Justice John Roberts said only that he had “looked through” the entire law.
That no justice seemed eager to delve into the whole thing might have serious consequences on the issue of what is called “severability” — that is, whether part of the law, in this case the individual mandate, can be declared unconstitutional and struck down, while the remainder stays in effect. It’s just not clear what those consequences might be.
On the one hand, some of the justices appear hesitant to strike down the entire law, even if they kill the mandate, because there are lots of other things in the law that would not be directly affected by losing the mandate. But other justices worry that if they strike down the mandate and leave the rest standing, it would leave an unworkable mess.
When a lawyer urged the court to use “judicial restraint,” Justice Anthony Kennedy wondered whether leaving some of the law standing might be more radical than knocking down the whole thing. Kennedy suggested the court might be overstepping its power if “one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended. By reason of this court, we would have a new regime that Congress did not provide for, did not consider. That, it seems to me, can be argued at least to be a more extreme exercise of judicial power than ... striking the whole.”
Talk like that — Kennedy is, after all, widely thought to be the swing vote who could save Obamacare — left the law’s supporters absolutely freaked out as they watched and read reports suggesting Obamacare is doomed.
“How did so many commentators predicting this would be a slam dunk for the Obama administration get it so wrong?” asked liberal Washington Post blogger Greg Sargent. Sargent theorized that the law’s supporters simply underestimated the right-wing zealotry of Antonin Scalia. But there’s an easier explanation: They simply never considered whether the vast, unprecedented and intrusive new law would raise any constitutional issues. It never entered their minds.
Two years ago, then-House Speaker Nancy Pelosi was taken aback when a young conservative reporter asked her, “Where, specifically, does the Constitution grant Congress the authority to enact an individual health insurance mandate?”
“Are you serious?” Pelosi responded. “Are you serious?”
Pelosi never answered the question, and neither did many liberals, even as a serious challenge to Obamacare made its way to the Supreme Court.
In the end, it might turn out that all of the liberal panic was unnecessary — and all the conservative hope unfounded. Listening to the arguments and reading the transcript, it’s not at all clear that the court will strike down the individual mandate, much less the whole of Obamacare. Yes, Kennedy sounded skeptical, but he’s entirely capable of engaging in tortured logic to allow the law to stand. Chief Justice Roberts’ position isn’t clear, either. The case wasn’t a slam dunk before, and it’s not a slam dunk now.
But it will be over soon. The justices have already met in conference and taken a preliminary vote on the case. A final decision is due in June.
Byron York is chief political correspondent for The Washington Examiner.