Day 3 was, to be frank, a whole bunch of nothing. That’s what happens when you spend Day 2 examining all of the most interesting things. As a result, I haven’t got much to say, but I can give you my sense of what the outcome of this third day of arguments was. Essentially, it seems that the argument that the federal government’s expansion of the Medicaid program is very unlikely to be considered coercive to the states. This isn’t very surprising, as the real surprise was that the Court actually considered this issue in the first place. The other take-home message was that the Court is likely to invoke severability–even though Congress didn’t explicitly specify that in the Affordable Care Act–meaning that the entire law will not be struck down as unconstitutional even if the Court rules that the individual mandate component of the law is unconstitutional. That’s good news and bad news. It’s good news because it means that many important provisions of health reform will remain intact. It’s bad news because it means that Congress will figure out how to keep certain provisions (e.g., guaranteed issue, community rating) in the absence of the mandate.
Supreme Court Arguments – Day 3