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Supporters of health care reform stand in front of the Supreme Court in Washington, Wednesday, March 28, 2012, on the final day of arguments regarding the health care law signed by President Barack Obama. (AP Photo/Charles Dharapak)

AP

Supporters of health care reform stand in front of the Supreme Court in Washington, Wednesday, March 28, 2012, on the final day of arguments regarding the health care law signed by President Barack Obama. (AP Photo/Charles Dharapak)

— Several Supreme Court justices seemed receptive Wednesday to the idea that portions of President Barack Obama's health care law can survive even if the court declares the centerpiece unconstitutional.

On the third and last day of arguments, the justices seemed skeptical of the position taken by Paul Clement, a lawyer for 26 states seeking to have the Patient Protection and Affordable Care Act tossed out in its entirety.

In their questions, liberal justices Sonia Sotomayor, Elena Kagan and Ruth Bader Ginsburg — and conservative Chief Justice John Roberts, too — seemed open to the idea that the wide-ranging law contains provisions that can be saved — even if the requirement that Americans carry health insurance or pay a penalty is struck down.

"The rest of the law cannot stand," Clement told the justices.

"What's wrong with leaving this in the hands of those who should be fixing this?" asked Sotomayor, referring to Congress.

Roberts noted the changes in the law besides the insurance mandate.

Many of the provisions "have nothing to do with any of the things we are" talking about, the chief justice said.

Ginsburg observed that the act deals with issues such as black lung disease.

"Why make Congress redo those?" she asked. "There are many things" that have "nothing to do with affordable health care."

The Obama administration argues that the only other provisions the court should kill in the event the mandate is stricken are revisions that require insurers to cover people regardless of existing medical problems and limit how much the companies can charge in premiums based on a person's age or health.

The justices also will spend part of Wednesday considering a challenge by 26 states to the expansion of the Medicaid program for low-income Americans, an important feature toward the overall goal of extending health insurance to an additional 30 million people.

As the arguments resumed Wednesday morning, a smaller group of demonstrators than on previous days gathered outside.

Supporters of the law held a morning news conference where speakers talked about the importance of Medicaid. And, marching on the sidewalk outside the court, supporters repeated chants they've used the past two days including "Ho, ho, hey, hey, Obamacare is here to stay." Most of their group departed not long after arguments began inside.

Opponents of the law, including Susan Clark of Santa Monica, Calif., also stood outside the court. Clark, who was wearing a three-cornered colonial-style hat, carried a sign that read "Obamacare a disaster in every way!"

"Freedom, yes. Obamacare, no," other opponents chanted.

The first two days of fast-paced and extended arguments have shown that the conservative justices have serious questions about Congress' authority to require virtually every American to carry insurance or pay a penalty.

The outcome of the case will affect nearly all Americans and the ruling, expected in June, also could play a role in the presidential election campaign. Obama and congressional Democrats pushed for the law's passage two years ago, while Republicans, including all the GOP presidential candidates, are strongly opposed.

But the topic the justices took up Wednesday only comes into play if they first find that the insurance mandate violates the Constitution.

The states and the small business group opposing the law say the insurance requirement is central to the whole undertaking and should take the rest of the law down with it.

The federal appeals court in Atlanta that struck down the insurance requirement said the rest of the law can remain in place, a position that will be argued by a private lawyer appointed by the justices, H. Bartow Farr III.

On Tuesday, the conservative justices sharply and repeatedly questioned the validity of the insurance mandate.

If the government can force people to buy health insurance, justices wanted to know, can it require people to buy burial insurance? Cellphones? Broccoli?

The court focused on whether the mandate for Americans to have insurance "is a step beyond what our cases allow," in the words of Justice Anthony Kennedy.

"Purchase insurance in this case, something else in the next case," Chief Justice John Roberts said.

But Kennedy, who is often the swing vote on cases that divide the justices along ideological lines, also said he recognized the magnitude of the nation's health care problems and seemed to suggest they would require a comprehensive solution.

And Roberts also spoke about the uniqueness of health care, which almost everyone uses at some point.

"Everybody is in this market, so that makes it very different than the market for cars or the other hypotheticals that you came up with, and all they're regulating is how you pay for it," Roberts said, paraphrasing the government's argument.

Kennedy and Roberts emerged as the apparent pivotal votes in the court's decision.

The law envisions that insurers will be able to accommodate older and sicker people without facing financial ruin because the insurance requirement will provide insurance companies with more premiums from healthy people to cover the increased costs of care.

"If the government can do this, what else can it not do?" Scalia asked. He and Justice Samuel Alito appeared likely to join with Justice Clarence Thomas, the only justice to ask no questions, to vote to strike down the key provision of the overhaul. The four Democratic appointees seemed ready to vote to uphold it.

Justice Anthony Kennedy at one point said that allowing the government mandate would "change the relationship" between the government and U.S. citizens.

"Do you not have a heavy burden of justification to show authorization under the Constitution" for the individual mandate? asked Kennedy.

At another point, however, he also acknowledged the complexity of resolving the issue of paying for America's health care needs.

"I think it is true that if most questions in life are matters of degree ... the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. That's my concern in the case," Kennedy said.

Ginsburg said she found the debate over health care similar to an earlier era's argument about the Social Security retirement system. How could Congress be able to compel younger workers to contribute to Social Security but be limited in its ability to address health care? she wondered.

"There's something very odd about that, that the government can take over the whole thing and we all say, Oh, yes, that's fine, but if the government wants to preserve private insurers, it can't do that," she said.

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Comments » 30

brown writes:

Dow Jones 13,000 NASDAQ highest in decade! UE dropping! Warren Buffet & Bill Gates endorse Obama.

wonderful (Inactive) writes:

Gas prices, obamacare, world peace, class warfare and welfare, and so on.....

I don't think you can order a teleprompter with solutions, eh?

Just might have to do more than be present and so incapable!

G-----

Hope these folks write fast! Some don't look like they will make it to June! much less November!

Badge676 writes:

I would like to see the mandate struck down, the rest remain, plus allowing those whom chose to not participate, to be blocked from joining later. They would be required to seek private health insurance outside the system, thus paying higher rates, and not jumping in only when they got a major illness. They would be guaranteed coverage, but on their own as to premiums.
Same for the emergency room. Except for an immediate life threatening illness or injury, denied, and sent to a walk-in clinic.

NeezDutz writes:

I have a great idea. Even if blocked in the past. How about just making the Govt insurance an option?
Make it economical with different levels of payment.
This will cause massive competition to the current insurance providers, causing them to adjust their pricing structure.

brown writes:

States right rock. Vermont has single-payer plan. Why not others?

amuser writes:

The idea of everyone having health coverage would eliminate certain citizens from using hospital emergency rooms for any and all illnesses and getting their treatment for free. Actually not free, because the rest of us end up paying for their "free" treatment because they have no health coverage.

Ruger writes:

in response to brown:

States right rock. Vermont has single-payer plan. Why not others?

Please educate yourself..

http://en.wikipedia.org/wiki/Vermont_...

However, the Patient Protection and Affordable Care Act prevents the Green Mountain Care law from going into effect in Vermont until 2017; the state government is currently requesting for a "waiver for state innovation" from the federal government.

swamp4ever writes:

in response to amuser:

The idea of everyone having health coverage would eliminate certain citizens from using hospital emergency rooms for any and all illnesses and getting their treatment for free. Actually not free, because the rest of us end up paying for their "free" treatment because they have no health coverage.

This is a novel idea you have here, but what about all the illegals who don't file tax returns or pay taxes? They will continue to have no health insurance and we will continue to pay for it.

swamp4ever writes:

I thought this bill was passed through the reconciliation process......which meant it has to be fiscally neutral.....if any portion of the bill is thrown out and changes the finances, then the whole bill is dead. Well, rules don't apply to Washington D.C., what am I thinking.

Sanity writes:

in response to swamp4ever:

This is a novel idea you have here, but what about all the illegals who don't file tax returns or pay taxes? They will continue to have no health insurance and we will continue to pay for it.

If we enforced our immigration laws properly we wouldn't have all these illegals using emergency services without paying.

swamp4ever writes:

in response to Sanity:

If we enforced our immigration laws properly we wouldn't have all these illegals using emergency services without paying.

Lets be real here, do you really think that is gonna happen?

Coastal writes:

Gas prices rising over $4
Consumer confidence down
Home prices down
Unemployment up
GITMO still open
Americans still dying in wars of choice for nothing
Stock market being propped up by printed money
Foreclosures rising
Racial tensions increasing
Class warfare on the rise
People who would look like Obama’s son committing felonies without regard
Adding $4.5 billion a day to the debt
Deficit increased more in the last 3 years than in the last 300 combined.
Worst inflation in 30 years
Longest depression in US history
Stimulus fraud
Investment capitol leaving to create jobs in other countries due to more and more regulations.
Highest Corporate tax rate in the world.
Democrat Care already costing double what Obama promised in just one year.
Medicare funding slashed by half a billion dollars.

And that’s only the history of Obama that we know about. His next term he will be “more flexible”. Bwahahahahaha

Democrat care does not limit it’s coverage to Americans only. Do you think your kids and grand kids can afford to pay for unlimited healthcare for anyone who wanders into this country? Lets see.

alexia6ciula writes:

in response to Badge676:

I would like to see the mandate struck down, the rest remain, plus allowing those whom chose to not participate, to be blocked from joining later. They would be required to seek private health insurance outside the system, thus paying higher rates, and not jumping in only when they got a major illness. They would be guaranteed coverage, but on their own as to premiums.
Same for the emergency room. Except for an immediate life threatening illness or injury, denied, and sent to a walk-in clinic.

I agree.
Those people who do not want to make heath insurance mandatory just want to walk in to the hospital get care aned leave us (insured) with bigger bill and make up for them not paying.

alexia6ciula writes:

I want to know why the Republicans always oppose to a change in law by saying " Its not the government job" I have news for you: If is not the government job to oversee and make laws to protect and create some order in this capitalistic world . If they think is not their job they should not be "working for us" Lets get all those freeloader insured by our tax monies out of here..

DinNaples writes:

in response to amuser:

The idea of everyone having health coverage would eliminate certain citizens from using hospital emergency rooms for any and all illnesses and getting their treatment for free. Actually not free, because the rest of us end up paying for their "free" treatment because they have no health coverage.

How does this stop people who can't afford it to get health care for free? They will still get it, we all will still pay. The only exception will be the government will now control health care. How does that make sense to you?

alexia6ciula writes:

in response to amuser:

The idea of everyone having health coverage would eliminate certain citizens from using hospital emergency rooms for any and all illnesses and getting their treatment for free. Actually not free, because the rest of us end up paying for their "free" treatment because they have no health coverage.

I agree. If we all are covered and the prices are controlled by the GOV so that insurance company cannot overcharge us.

alexia6ciula writes:

in response to swamp4ever:

This is a novel idea you have here, but what about all the illegals who don't file tax returns or pay taxes? They will continue to have no health insurance and we will continue to pay for it.

For your information illegals keep the economy flowing here expecially in Florida . They work below minimum wage in construction, lawn care and farm and pay taxes. Yes you heard that right! (The employers have to use fake SSN provided by the illegals so they can deduct taxes and look like they are in compliance with the law) most Illegals cannot file for tax returns but they pay it. Also illegal Citizens (new slaves) drive the cost of living down here in Florida, thats why living in paradise is soo affordable and the builders , restaurants and farm get rich and hire good CPA to pay as little taxes they can. As you can see illegals are not the biggest problem here as far as healthcare goes

swamp4ever writes:

in response to alexia6ciula:

For your information illegals keep the economy flowing here expecially in Florida . They work below minimum wage in construction, lawn care and farm and pay taxes. Yes you heard that right! (The employers have to use fake SSN provided by the illegals so they can deduct taxes and look like they are in compliance with the law) most Illegals cannot file for tax returns but they pay it. Also illegal Citizens (new slaves) drive the cost of living down here in Florida, thats why living in paradise is soo affordable and the builders , restaurants and farm get rich and hire good CPA to pay as little taxes they can. As you can see illegals are not the biggest problem here as far as healthcare goes

Interesting.....so they keep the economy flowing, so we'll just ignore it. I'll buy that argument. How do they pay taxes if they don't file tax returns? My guys marched into my office and asked to fill out new W-4's. They claimed 9 exemptions (zero withholding), signed, and walked out. Their W-2's? Get thrown in the trash. So, I have $22hr illegals not paying taxes and not filing tax returns, and legally I can't do a thing about it. Don't ramble to me about living in paradise and all that kumbaya crap. If you don't like the laws, then change them. Don't tell me I personally have to file tax returns, pay taxes, and now have a mandate to carry insurance while another group of folks gets ignored. I never said the illegals were the biggest problem, I'm asking why do I have to have health insurance and they don't?

Coastal writes:

in response to GOPWhistleblower:

(This comment was removed by the site staff.)

There is more!

Starts a war in Libya without Congressional approval

chucky writes:

No, No, Obama care only covers 10% of the population, if you want to cover all 326 Million citizens (illegals not counted, although they think nothing of filling our emergency rooms) you are going to have to add a WHOLE lot more money to the bill. If you think Government run healthcare would be good, ask a veteran how good his VA hospital care is.

JunkYardDog_1 (Inactive) writes:

This must be the biggest line of BS I've heard in my lifetime.
http://www.youtube.com/watch?v=o5t8Gd...

Maybe we should pass this Obamacare mandate to find out what's in it?

baldygrandpa writes:

Prediction.If the SCOTUS comes out against the Presidents reforms then after Novembers landslide victory when both House and Senate have large Dem Majorities He will come back with a single payer system which is what was intended in the first place. Next step is to remove all financial barriers to education leading to medical qualifications. We may have to ask Cuba to help with that. Pity, some of our greedy Docs may not be able to afford their Golf Club memberships but can't make an omelet without breaking a few eggs.

JunkYardDog_1 (Inactive) writes:

Link didn't carry over.

Here's the lies straight from the horses mouth.

http://www.youtube.com/watch?v=o5t8Gd...

JunkYardDog_1 (Inactive) writes:

in response to GOPWhistleblower:

(This comment was removed by the site staff.)

Aren't those Muslim fanatics still waiting for their 70 virgins in hell?

mea0223 writes:

in response to DinNaples:

How does this stop people who can't afford it to get health care for free? They will still get it, we all will still pay. The only exception will be the government will now control health care. How does that make sense to you?

Yes, "they" will get it free, based on income, however by having more people insured, the costs are spread out at managed care rates, than pass along to us insured at the higher rates. If you ever take the time to look at your Evidence of Insurance, the 'billed amount' is what the hospital charges the uninsured, and the 'allowed amount' is what is the contracted rate.

I'd rather be on the hook for the the costs at the 'contracted rate' than the 'billed amount'

mea0223 writes:

in response to 2ndAmendment:

(This comment was removed by the site staff.)

The illegals you whine about are picking your tomatoes for McDonalds.Will your kid pick tomatoes for their rate of pay? Be careful what you wish, the attempt was made in Alabama and the farmers are begging for help.

http://www.csmonitor.com/USA/Politics...

Coastal writes:

in response to GOPWhistleblower:

(This comment was removed by the site staff.)

Obama Bypasses Congress, Gives $1.5 Billion to Muslim Brotherhood

HAP writes:

Only one Justice said they'd be open, but of course she is the one who wrote this scam.

Ruger writes:

in response to HAP:

Only one Justice said they'd be open, but of course she is the one who wrote this scam.

Kagan should recuse herself, she has supported this disaster...

http://www.nationalreview.com/bench-m...

According to Section 455(b)(3) of Title 28 of the U.S. Code, justices must disqualify themselves in cases where they have “served in governmental employment and in such capacity participated as counsel, adviser, or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case or controversy.” In United States v. Gipson, the Tenth Circuit held that judges must recuse themselves if they have “previously taken a part, albeit small, in the investigation, preparation, or prosecution of a case.”...

Kagan herself has admitted that she attended “at least one meeting” in which the case now before the Court was mentioned, but the e-mails show that she also was privy to discussions of the administration’s litigation strategy at least up until the announcement of her nomination on May 10, 2010.

OP writes:

Congress had a sever ability (sp) clause in the Bill, and removed it, on purpose. They made the conscience decision that the Bill must not stand without the Mandate. They, Congress formed the Bill with the intent that it must be all, or none. Why, they chose to do this is left to be discovered; and is not germane to a Constitutionality question. So, if as I believe they must, the Justices of the Supreme Court agree that forcing the people to buy a product is unconstitutional, then the whole Bill must/should be thrown out.

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