Listen | Day 3 Highlights from the Supreme Court Health Care Case

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Two policemen guard outside the US Supreme Court on the third day of oral arguements over the constitutionality of the Patient Protection and Affordable Care Act on March 28, 2012 in Washington, DC.

On the final day of oral arguments before the Supreme Court concerning the constitutionality of the 2010 health care overhaul, questions of “severability” and “coercion” came to the fore.

Today’s proceedings were unique in that there was both a morning and afternoon session. The court considered different, specific questions at each.

Is the whole thing unconstitutional?

The morning session concerned severability—whether or not finding the individual mandate unconstitutional would mean invalidating the whole of the Affordable Care Act.

In other words, is this provision “severable” from the others?

Paul Clement, the attorney representing the 26 states challenging the mandate, argued that without it, the law would be a “hollowed-out shell.” All of the obligations in the law are “designed to work in tandem,” according to Clement’s brief filed with the court, “so as to achieve Congress’ ultimate goal of ‘near-universal coverage.’”

The mandate is the pillar on which all other reforms stand, and it’s central to the stated purpose of the legislation. So, Clement argues, the rest of the law is toothless without it; the Affordable Care Act wouldn’t have been passed by Congress in the first place had there been no mandate.

There were signs this morning that the justices were indeed considering legislators’ limitations and intentions when passing the law. Chief Justice John Roberts pointed out that many pieces of the legislation were added in order to attract votes from those with whom the mandate was less popular, and who would have otherwise voted against the bill.

Liberal Justices Elena Kagan, Stephen Breyer, and Ruth Bader Ginsburg, on the other hand, argued for a lighter touch on the law, and that precedent supported severability, which would be a wiser—and more conservative—tack for the court to take. Ginsburg specifically argued that between “a wrecking operation and a salvage job, a more conservative approach would be a salvage job.”

Edwin Kneedler, the lawyer for the federal government, faced questions about whether it might be more prudent to invalidate the whole law and let Congress start from scratch.

Justice Antonin Scalia expressed doubt that Congress could effectively re-tool the law when its central provision had been amputated. Scalia also said he was concerned that invalidating the mandate without getting rid of the law would require the Supreme Court to go through the ACA’s 2,700 pages to find and invalidate every provision connected to it. “Totally unrealistic,” Scalia said.

One argument in favor of severability holds that a mandate is not the only tool by which Congress could control health care costs. That would mean the mandate is not inextricably linked to other provisions of the bill with that end in mind.

However, in four minutes of rebuttal at the end of the morning session, Paul Clement argued that in the Affordable Care Act, Congress itself characterized the individual mandate not as a tool to make health care affordable, but as the tool.

“To look at what Congress was trying to do, you need look no further than the title of the statute: Patient Protection and Affordable Care,” Clement said. “What made it affordable? The individual mandate.”

Listen | Morning session

Are the states being "coerced"?

Challengers of the health care law made a distinct argument in the afternoon session that the Affordable Care Act’s expansion of Medicaid amounted to “coercion” of the states by Congress, which was beyond its authority.

Under the law, states would have to expand their Medicaid programs to cover approximately 16 million newly eligible beneficiaries, or forego all federal funding for the program.

States would take such an enormous financial hit if they failed to expand their coverage, Paul Clement argues, that Congress would effectively “commandeer the States through coercion.” It’s too much money for any state to leave on the table, realistically.

The federal government, Clement writes in his brief, doesn’t “even try to explain how a State could possibly reject new terms attached to billions of dollars of pre-existing funds under the single largest federal-state spending program in existence.”

Early in his oral argument this afternoon, Clement was asked by Justice Kagan why “a big gift from the federal government” was a matter of coercion. “It’s just a boatload of federal money,” she continued. “It doesn’t sound coercive to me.”

Kagan then wondered whether her offering Clement a job that paid $10 million would also constitute coercion.

Defending the federal government, Solicitor General Donald Verrilli had to answer questions about what limits there were on actions the government can take to make states participate in federally-funded programs like Medicaid.

Some Justices also wondered why, if the federal government was offering to pay 90 percent of the short-term setup costs of a state's expansion—which would also insure the poorest of the poor, and therefore be obvious good policy—it needed to threaten to withhold all of that state's Medicaid funds, as opposed to simply denying additional funding.

"If it's such a good deal, why do you need the club?" Justice Scalia asked Verrilli. "Is it conceivable to you that any state would have said 'no'? If you can't conceive of anyone saying 'no,' that sounds like coercion to me."

"It's wrong to think about this as coercion because this is a program that works effectively for the citizens of the state," Verrilli argued later during his time. "State governments think that, and that's why it's expanded the way it's expanded."

Listen | Afternoon session

It should be noted that the severability argument and the coercion argument are each separate from the question of whether the individual mandate is constitutional. The states could lose both arguments they made today, even if the court rules in their favor and finds the individual mandate unconstitutional.