There was another moment from oral arguments that jumped out at me. In theory, there’s nothing stopping the Supreme Court from ruling against the health care mandate, and suggesting that Congress needs to find a solution that leaves the rest of the law intact. This was basically the recommendation in Brown (“all deliberate speed”), and it was what the court came up with in the last affirmative action case.
A problem: Congress can’t really pass anything anymore. “The question is really what task do you want to give Congress?” asked Paul Clement, the brilliant attorney for the plaintiffs. “Do you want to give Congress the task of fixing the statute after something has been taken out, especially a provision at the heart, or do you want to give Congress the task of fixing health care?”
The conversation continued:
CLEMENT: If you strike down only the individual mandate, Congress could say the next day, well, that’s the last thing we ever wanted to do; so, we’re going to strike down the rest of the statute immediately and then try to fix the problem. So, whatever you do, Congress is going to have options. The question is --
SCALIA: Well, there’s such a thing as legislative inertia, isn’t there?
CLEMENT: Well, that’s exactly --
SCALIA: I mean --
CLEMENT: – what I was going to say, Justice Scalia, which is I think the question for this Court is – we all recognize there’s legislative inertia. And then the question is what’s the best result in light of that reality?
SOTOMAYOR: Are you suggesting that we should take on more power to the Court?
CLEMENT: No, I --
SOTOMAYOR: Because Congress would choose to take one path rather than another. That’s sort of taking onto the Court more power than one, I think, would want.
CLEMENT: And I agree. We’re simply asking this Court to take on, straight on, the idea of the basic remedial inquiry into severability…
The assumption is that Congress can’t really do anything of substance here. That’s an omen of some kind for “repeal and replace” in 2013.