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Clement (Associated Press/Photo by Charles Dharapak)

Day three

Supreme Court | On the final day of arguments, the high court was torn about whether to strike down the entire healthcare law

WASHINGTON-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.

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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."

A court-appointed lawyer, H. Bartow Farr, argued that the court should leave the rest of the law intact if it struck down the mandate. He said that the mandate was not, in fact, the heart of the law, even though the law described it as "essential."

"'Essential' effectively means useful," said Farr.

"Is there any dictionary that gives that definition of 'essential'?" Scalia broke in. "It's very imaginative."

Paul Clement, arguing on behalf of the states, acknowledged that some peripheral parts of the bill were good and constitutional. But he added, "The provisions that have constitutional difficulties … are the very heart of this act. … You can't possibly think that Congress would have passed that hollow shell."

"But it would have passed parts of the hollow shell," interjected Chief Justice John Roberts.

Justice Stephen Breyer listed some aspects of the act unrelated to the mandate: a provision on breastfeeding, a provision on Native American healthcare, a provision on black lung disease benefits. "What should I do?" Breyer asked.

"I suspect with a lot of these miscellaneous provisions that Justice Breyer was talking about, that was the price of the vote," said Roberts.

Scalia also brought up the "price" of the healthcare vote to hearty laughter when he mentioned the so-called "Cornhusker Kickback," a boon to Nebraska that brought in Nebraska Sen. Ben Nelson's critical vote for the law. What if the court found that provision unconstitutional, Scalia asked, because of its "venality"? Congress couldn't have passed the bill without that provision, he argued, so would the whole statute fall because of the Cornhusker Kickback? "That can't be right," he said.

Justice Anthony Kennedy wondered whether it would be "more extreme" for the court to pick parts of the law to preserve than to strike the law down as a whole.

The court also heard arguments Wednesday on the law's expansion of Medicaid, which states said was a coercive burden (download a PDF of the court's transcript). The law requires states to expand eligibility for Medicaid-covering millions more low-income and disabled individuals-in order to receive any federal funds at all.

The federal government would fund most of the expanded coverage, but Clement argued that states had no choice to refuse the federal expansion because they couldn't bear the full cost of Medicaid.

"You've been given an offer you can't refuse," Scalia explained. The court's overall attitude on that question wasn't clear but perhaps leaned in the direction of protecting state interests.

The liberal justices seemed to support the Medicaid provision. "Why is a big gift from the federal government a matter of coercion?" asked Kagan.

Roberts, one of the conservatives, wondered the same thing.

"Why isn't that a consequence of how willing [states] have been since the New Deal to take the federal government's money?" he asked Clement. "And it seems to me that they have compromised their status as independent sovereigns because they are so dependent on what the federal government has done … they tied the strings, they shouldn't be surprised if the federal government isn't going to start pulling them."

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