The Lizza List: Ten Quotes on the Fate of Health Care

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http://www.newyorker.com/online/blogs/newsdesk/2012/03/the-lizza-list-wrestling-with-severability.html



How did the final day of oral arguments at the Supreme Court about the Affordable Care Act go? Depends on your perspective. Whether or not the Court ultimately strikes down the individual mandate that’s key to the law, its supporters had to be dispirited as they heard the justices wrestle with the question of severability—that is, whether or not the full law has to go if the mandate does. Below, the ten quotes that are key to understanding the day’s proceedings, taken from the transcript released by the Court. (For more, see The New Yorker’s full coverage of this week’s arguments.)

1. Justice Sonia Sotomayor: “We are not in the habit of doing the legislative findings. What we do know is that for those States that found prices increasing, that they found various solutions to that. In one instance, and we might or may not say that it’s unconstitutional, Massachusetts passed the mandatory coverage provision. But others adjusted some of the other provisions. Why shouldn’t we let Congress do that, if in fact, the economists prove, some of the economists prove right, that prices will spiral? What’s wrong with leaving it to—in the hands of the people who should be fixing this, not us?”

2. Justice Antonin Scalia: “All right. The consequence of your proposition, would Congress have enacted it without this provision, okay that’s the consequence. That would mean that if we struck down nothing in this legislation but the—what do you call it, the corn husker kickback, okay, we find that to violate the constitutional proscription of venality, okay? (Laughter.) When we strike that down, it’s clear that Congress would not have passed it without that. It was the means of getting the last necessary vote in the Senate. And you are telling us that the whole statute would fall because the corn husker kickback is bad. That can’t be right.” (N.B.: The so-called Cornhusker kickback was repealed by Congress only days after the Affordable Care Act was signed into law.)

3. Justice Ruth Bader Ginsburg: “There are so many things in this Act that are unquestionably okay. I think you would concede that reauthorizing what is the Indian Healthcare Improvement Act changes to long benefits, why make Congress redo those? I mean it’s a question of whether we say everything you do is no good, now start from scratch, or to say, yes, there are many things in here that have nothing to do frankly with the affordable healthcare and there are some that we think it’s better to let Congress to decide whether it wants them in or out. So why should we say it’s a choice between a wrecking operation, which is what you are requesting, or a salvage job. And the more conservative approach would be salvage rather than throwing out everything.”

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