WEDNESDAY MARCH 28, 2012
Day 3 of oral arguments on the Affordable Care Act brought more food analogies, as the justices and attorneys debated whether the rest of the law should stand even if the individual mandate is held to be unconstitutional. Most of the attorneys argued, and Justices Scalia and Roberts seemed to agree, that the law is so large, with so many components, that it should fall in its entirety if the individual mandate is declared unconstitutional.
The justices demonstrated a good working knowledge of how Congress operates, noting that some components like the Cornhusker Kickback were added to get votes. Some justices asked whether or not some of the provisions should be allowed to stand because they are clearly constitutional and at least we’d be left with “half a loaf.” But most seem to agree, as I do, that if the mandate is struck down, we will be left with an empty shell and that the component parts of the law were integral to passage of the entire act.