Bloomberg Business Week
By Paul M. Barrett
March 28, 2012
As much as you’re no doubt dying to hear about the doctrine of statutory severability, let’s begin today with the jurisprudence of Jeffrey.
That’s Jeffrey as in Jeff Toobin, on-air legal analyst for CNN, prolific writer for the New Yorker magazine, and author of a number of excellent books, including The Nine, a behind-the-scenes account of the Supreme Court. As his résumé suggests, Toobin knows law (he’s also a former federal prosecutor) and he’s skilled at explaining legal affairs in plain English. (Disclosure: I’ve been friends with Toobin since college, and when I ask him, he blurbs my books; welcome to the New York elite, self-regarding mainstream media conspiracy!)
Anyway, on Tuesday, Toobin emerged from behind the Supreme Court’s marble pillars and announced his ruling on Obamacare: It is dead. “This was a train wreck for the Obama administration,” he said on CNN of the second and most important day of oral arguments over the constitutionality of the health insurance mandate. “This law looks like it’s going to be struck down.”
Toobin’s comments set the tone for a lot of subsequent coverage and commentary (an example here). In a measure of his influence, prominent congressional Democrats who backed the White House on the health-care overhaul felt compelled to file appeals of Toobin’s determination in the court of public opinion. These included Senate Majority Leader Harry Reid yesterday and House Democratic Whip Steny Hoyer today.
One element of Toobin’s analysis emphasized what he called the “stumbling” performance of Solicitor General Donald Verrilli. “It was awful,” he said. And you can’t dispute that Verrilli, the administration’s chief appellate lawyer, seemed off his game on Tuesday, especially in light of his reputation as an ace advocate. Justices Antonin Scalia and Samuel Alito were particularly merciless in their cross-examination. Their apparent conclusion: Congress exceeded its authority to regulate commerce when it imposed a requirement that all Americans acquire health insurance or pay a penalty.
But as we noted here yesterday, it’s perilous to read too much into the theatrics at the high court. Sure enough, Toobin has backed off a step, acknowledging on the air this morning that “the lawyers don’t matter all that much.” Indeed, he added, “These justices, they know what they think about these issues.”
Toobin did not retreat from his prediction that the Affordable Care Act will go down on a 5-4 party-line vote. He might be correct about that. Or Justice Anthony Kennedy and Chief Justice John Roberts may harbor anxieties about destabilizing judicial precedent going back to the New Deal era that has, until this case, been widely understood to provide lawmakers with nearly comprehensive authority to regulate the world’s largest economy.
We’ll see in June or July, when the justices are expected to rule. Meanwhile, don’t read too much into poor Don Verrilli’s bad day in the spotlight.
Which brings us to severability: the question of what would happen to the rest of of the 2,700-page health reform law if the high court strikes down the insurance mandate. Would the rest of the law survive? Would Congress have to start from scratch?
According to Bloomberg News, Chief Justice Roberts and Justice Ruth Bader Ginsburg pointed out from the bench this morning that the ACA includes such provisions as one reauthorizing black-lung benefits and another governing American Indian health care. Even if the insurance mandate were eliminated, “why make Congress redo those?” Ginsburg asked. (No, that doesn’t mean that Ginsburg, an apparent supporter of the mandate, has given up the fight on the larger issue).
Coming at the issue from another angle, Justice Kennedy questioned whether it would be “more extreme” for the justices to meddle with just a part of the statute, rather than sweep it all aside and give Congress a clean slate. (No, that doesn’t mean he’s made up his mind, either.) (Here’s Wednesday’s transcript, courtesy of The Hill.)
At least some of the high court votes are likely still in play. That’s what makes judicial prognostication fun.