Court not eager to go through 2,700 pages of law to find what to save

National Journal:

The Supreme Court suggested on Wednesday morning that it is in no mood to do intricate surgery on the 2010 health care reform law, even if the individual mandate is struck down, with liberal justices saying that Congress should come back in and make any needed fixes.

"You want us to go through 2,700 pages?” Justice Antonin Scalia asked incredulously.

The third and final day of oral arguments on the law was set aside for two separate questions--what to do if the requirement to buy insurance is ruled unconstitutional, and whether the federal government is going too far in making states expand Medicaid. The morning was devoted to the severability question.

"Why shouldn't we let Congress" decide what to do, Justice Sonia Sotomayor asked lawyer Paul Clement, who is arguing on behalf of 26 states challenging the law. "What's wrong with leaving it in the hands of people … not us?" she continued.

An hour and a half was set aside for arguments about whether any of the Obama administration’s signature domestic initiative could survive if the requirement that people buy health insurance is removed. Clement said that the law would be a “hollowed-out shell.”

Chief Justice John Roberts and Justice Anthony Kennedy seemed to be genuinely struggling with the question of how best to sever the mandate from the rest of the law, noting that there haven’t been a lot of other cases where an unconstitutional part of a law is central to the law’s provisions.

Justices Sotomayor, Ruth Bader Ginsburg, Elena Kagan, and Stephen Breyer seemed to have made up their minds that if the mandate is cut, then other provisions that depend on the mandate must go, too. “This seems like a situation where Congress would prefer half a loaf,” Kagan said.

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I think there is a good chance the whole thing will be thrown out.  If that is the case the argument over the Medicaid requirements would also become moot.  I think Scalia makes a good point and the other justices will also be reluctant to wade into the mess put together by Pelosi, et.al.