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Day Three: High Court Torn on Obamacare

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A day after the U.S. Supreme Court seemed ready to strike down the individual mandate as unconstitutional, all of the justices were perplexed about what would happen to the rest of the 2,700-page law if they did.

“Is half a loaf better than no loaf?” asked Justice Elena Kagan at Wednesday’s hearing, the last day of the healthcare arguments (download a PDF of the court’s transcript). Justice Ruth Bader Ginsburg said the court’s role was a “salvage job” rather than a “wrecking operation.” But Justice Antonin Scalia balked at that notion. “Is this not totally unrealistic?” he said. “That we are going to go through this enormous bill item by item and decide each one?”

Overall the justices wondered how they could avoid legislating from the bench. They struggled to find a bright line dividing parts of the law that could stand and parts that should fall with the mandate. “I don’t know another case where we have been confronted with this decision,” Scalia said.

The 26 states challenging the healthcare law argued that the court should strike down the entire law because the mandate was the law’s core.

“Better to throw it back and have nothing than have the mess we have today,” said Nebraska Attorney General Jon Bruning, one of the challengers, after Wednesday’s arguments.

The government argued that the court should only strike down two parts of the law—provisions that required insurance companies to insure all comers, essentially. The mandate made those two provisions financially feasible. As Kagan pointed out, if healthy people leave the insurance market, “the rates go up further, more people leave the market, and the whole system crashes and burns, becomes unsustainable.”

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