Justices struggle over whether ObamaCare should stand if mandate struck down

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By Fox News Network

On the final day of arguments over President Obama's health care law, Supreme Court justices struggled Wednesday over what to do with the rest of the Affordable Care Act if they also rule that its central provision is invalid. 

The question dealt with whether the entire health care law should stay or go or be revised if the so-called individual mandate -- the requirement that everyone buy health insurance -- is struck down. 

The discussion centered on what to do now with this case but also on concerns over the proper role for the courts in interpreting what Congress would want done with a law that's been changed from its original version. 

Justice Antonin Scalia raised concerns over the role of the courts in going through this law and others line by line looking for parts to strike down. 

"I don't know of another act where we've been confronted with this," he said. 

Some justices were open to keeping at least parts of the law, though. 

Justice Ruth Bader Ginsburg likened it to a preference for a salvage operation rather than a wrecking operation.

Ginsburg made note of many provisions in the ObamaCare law that have a modest relationship to the controversial individual mandate and could work just fine without the forced conscription of Americans onto health insurance rolls. 

"Why make Congress redo those?" she asked. 

Echoing that view was Justice Elena Kagan, regarding the creation of local health care exchanges to pool individuals into collectives that would be able to bargain for better rates. She said sometimes half-a-loaf is better than no loaf and Congress "seems like they want half a loaf." 

Justice Sonia Sotomayor agreed with that sentiment, but lawyer Paul Clement, arguing on behalf of the 26 states challenging the law, said that sometimes half a loaf is worse. 

He cited a landmark campaign finance case that he said led to decades of uncertainty and problems in political races. 

He says the entire law should be invalidated. 

The Obama administration takes the view that only two parts of the law -- guaranteeing insurance for all people and at an affordable rate -- should go down if the individual mandate is invalidated. 

But Justice Anthony Kennedy expressed concern with that view, saying it might end up worse for insurers and that it would be a "more extreme exercise of judicial power." 

In trying to preserve other parts of the law, Deputy Solicitor General Edwin Kneedler noted portions of the ACA that are already in effect and made mention of the provision allowing some adult children to obtain coverage through their parents. 

"It's going to bankrupt the insurance companies," Scalia shot back. 

Sotomayor then fired off a line of argument from Tuesday's hearing saying she thought 26-year-olds were healthy. A day earlier, the justices seemingly opposed to the law raised concerns over the costs of the mandate on younger, more healthy people. 

Chief Justice John Roberts wondered "where is the sharp line" to draw in determining what to keep and what to exclude. 

Kneedler said the line is based on what Congress called essential. 

The Court appointed lawyer Bartow Farr to defend the 11th Circuit's ruling that the entire ACA should be upheld. He said the rest of the act still "serves the central goals that Congress wanted" of near universal care at an affordable cost. 

But Kagan noted that based on the experiences of the states, Congress took the Massachusetts model which tied the individual mandate to the rest of the law.

Click here for full coverage of the ObamaCare hearings

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