During the long, painful debate that led to the passage of Obamacare, Republican lawmakers made a single request of their colleagues, the press and the public: Please read the 2,700-page bill. That request was mostly ignored, even by many of the members of Congress who voted for what became the Patient Protection and Affordable Care Act.
Now, it's someone else's turn not to read the bill. In oral arguments before the Supreme Court recently, some justices made it abundantly clear that they, too, haven't read the entire law, even if they are considering a constitutional question that could kill the whole thing.
"I haven't read every word of that, I promise," Justice Stephen Breyer said to a lawyer arguing the case. "So what do you propose that we do other than spend a year reading all this?"
"What happened to the Eighth Amendment?" Justice Antonin Scalia erupted after a lawyer suggested the justices might go through the bill and decide which parts were constitutional. The Eighth Amendment prohibits cruel and unusual punishment, and Scalia clearly thought reading the entire law would qualify. "You really want us to go through these 2,700 pages?" he asked the lawyer. "And do you really expect the court to do that?"
As for his part, Chief Justice John Roberts said only that he had "looked through" the entire law.
That no justice seemed eager to delve into the whole thing might have serious consequences on the issue of what is called "severability" -- that is, whether part of the law, in this case the individual mandate, can be declared unconstitutional and struck down, while the remainder stays in effect. It's just not clear what those consequences might be.
On the one hand, some of the justices appear hesitant to strike down the entire law, even if they kill the mandate, because there are lots of other things in the law that would not be directly affected by losing the mandate. But other justices worry that if they strike down the mandate and leave the rest standing, it would leave an unworkable mess.
When a lawyer urged the court to use "judicial restraint," Justice Anthony Kennedy wondered whether leaving some of the law standing might be more radical than knocking down the whole thing. Kennedy suggested the court might be overstepping its power if "one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended. By reason of this court, we would have a new regime that Congress did not provide for, did not consider. That, it seems to me, can be argued at least to be a more extreme exercise of judicial power than ... striking the whole."
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