This post was written by former O’Neill Institute Research Assistant and current Georgetown Law 2L Dinesh Kumar, who attended day three’s morning session of the Supreme Court’s hearing on the Affordable Care Act.

Every aspect of the Affordable Care Act (ACA) Supreme Court oral arguments has been dissected in the days following the historic hearings, including the “severability” issue (dealing with the question of what, if any, provisions of the law are valid if the Court finds the “individual mandate” to purchase insurance to be unconstitutional).  Professor Lawrence Gostin of the O’Neill Institute at Georgetown Law also gave his comprehensive take on the previous day’s individual mandate hearing here.  As I reviewed the many perceptive blog posts reacting to the severability argument (good examples of which are here, here, and here), I wondered what I could add from the perspective of a law student lucky enough to score a seat inside the courtroom.  As a supporter of the mandate – on constitutional, economic, and public health grounds – I’ll briefly highlight three aspects of the proceedings I found troubling.

 Justice Kennedy and judicial “restraint”

Severability has always been a concept tied to the ideal of judicial restraint ever since Chief Justice Marshall implored following Marbury v. Madison that while a provision deemed unconstitutional must fall, all other parts of a law should be given “full effect” as long as they are “not repugnant to the Constitution.” Several justices urged restraint on the part of the Court during the severability hearing; Justice Ginsburg called a “salvage job” preferable to a “wrecking operation,” and others repeated that a “half a loaf of bread” was better than no loaf at all.  But at one point Justice Kennedy, whose vote will perhaps decide the case, echoed a paradoxical notion of “restraint” put forth by Justice Scalia: That striking down the entire law would actually show more restraint than allowing some portion to stand while killing the mandate.  If Congress were allowed to start anew rather than being returned a law that spoiled its intended effect on the insurance industry, his thinking went, the Court would at once be deferential to Congress and true to its own constitutional ideals.  Justice Kennedy’s definition of restraint displays a kind of logic that makes it unclear whether he believes the most restrained thing to do would be to uphold or strike down the entire law.  READ MORE »