UPDATE: SCOTUS Backtracking On Individual Mandate?

While yesterday’s oral arguments seemed to make clear the Court’s opposition to the Obamacare individual mandate, today’s oral arguments seem to show the Court backtracking quickly. According to Lyle Denniston at SCOTUS Blog, the Justices seemed uncomfortable with the ramifications of striking down the individual mandate, since they might then have to wade through the 2,700 page bill and decide what to dump and what to keep. Denniston recounts:

The dilemma could be captured perfectly in two separate comments by Justice Antonin Scalia — first, that it “just couldn’t be right” that all of the myriad provisions of the law unrelated to the mandate had to fall with it, but, later, that if the Court were to strike out the mandate, “then the statute’s gone.”  Much of the lively argument focused on just what role the Court would more properly perform in trying to sort out the consequences of nullifying the requirement that virtually every American have health insurance by the year 2014.

Apparently, both Justices Scalia and Kennedy didn’t trust that Congress might be able to work out a new law that was actually Constitutional; Kennedy stated that asking Congress to do its job would be unrealistic unless the Court was speaking about “the hypothetical Congress.”

This, of course, is what the Obama Administration had in mind the entire time they were constructing a nearly 3,000 page bill. Nobody in Congress knew what was in it; the American public doesn’t know what’s in it; and now the Supreme Court seems wary of determining just what’s in it. If the Supreme Court rules the individual mandate constitutional, it won’t do so because the mandate is actually constitutional – it will do so because it believes that its coequal branch of government, Congress, must be forced to uphold its own constitutional duty and take an axe to this thicket of complexity. Unfortunately, that’s unlikely to happen.