Is the Supreme Court on the verge of a great mistake? Or, being faithful to their constitutional role?

"You want us to go through 2,700 pages" of the law? asked Justice Antonin Scalia. "Is this not totally unrealistic ... to go through one by one and decide each one?" Scalia's quote is telling and may represent signaling on behalf of the justices how they will ultimately vote on the constitutionality of the Affordable Care Act.

WASHINGTON, DC (Catholic Online) - Most agree there are three likely outcomes for the Act. The first is that it is upheld in its entirety, the second that it is struck down entirely, and the third, is that the individual mandate will be killed with the rest of the law remaining.

And while the third option seems possible based on comments from the justices, it could also be the most disastrous.

Still, Justice Antonin Scalia, who may lead the conservative majority on the court, seems to suggest that the entire law should fall. The reason, it is not the role of the Supreme Court to legislate!

At the heart of the debate is whether the federal government can mandate consumers purchase something. In this case, health insurance. The Affordable Care Act requires individuals to purchase insurance or face penalties.

Known as the "individual mandate," it is considered crucial to the rest of the bill since it is intended to keep the costs of healthcare affordable for all as millions of people become insured; without millions of new payers, many allege that costs could skyrocket. Others call that a scare tactic by proponents of statist solutions to health care.

The justices may have found no problem with the remainder of the law. Justice Ruth Bader Ginsburg summed it up saying, "There are so many things in this act that are unquestionably okay. Why make Congress redo those? I mean it's a question of whether we say everything you do is no good, now start from scratch."

Comments such as these appear to be signaling on the part of the justices that the individual mandate will be struck, but the rest of the bill's provisions will may survive.

This is not good news for many. Paul Clement, arguing against the law pointed out that gutting the individual mandate would leave the law as a "sort of hollow shell" that Congress would never have passed. The individual mandate is the funding mechanism.

While the question of the individual mandate is the focus of the debate, there are two additional issues that could cause the court to do something unexpected.

The first issue is one of severability, or the ability of the law to survive with one provision gone. Most laws passed by Congress contain a severability clause, but ironically, the 2,700 page law does not have one. From a "law 101" perspective, that means the justices must evaluate the law as a whole and cannot pick and choose provisions to strike or uphold.

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From a legal perspective, the court must either keep or discard the entire law. However, Ginsberg's comments suggest that at least she, and perhaps some other justices on the court will seek a way to keep the remaining provisions of the law.

However, Ginsberg and the liberal justices will not decide the outcome of the law. Rather, the whole court, including the five conservative justices will make the ultimate decision.

The second issue is more practical. With insurance companies forced to cover those with preexisting conditions, they may have to increase costs for coverage. Ultimately, without the individual mandate the costs of coverage with insurance may go up so much that insurance becomes too expensive to provide anyway and we will see more uninsured, not less.

That could be a nightmare scenario if it invites yet further government regulation later on. Certainly, nobody benefits if there are ever-greater numbers of people on the street without access to proper medical care. This could prompt the government to act even more drastically than it has so far. And it is this concern that has some speculating the Supreme Court may actually find a way to rule the mandate constitutional in spite of the obvious.

If so, the decision could have far-reaching and unintended consequences. 

It should be noted that the Supreme Court has not always ruled wisely in the face of controversy. Consider the rulings that upheld slavery (Fugitive Slave Law, 1793 and Dread Scott v. Sanford , 1857), segregation, (Plessy v. Ferguson, 1896) and abortion (Roe v. Wade, 1973). Some worry that the current debate could add another case to this list.Others do not equate the cases at all.

They argue that those cases concerned FUNDAMENTAL HUMAN RIGHTS. This one does not. It concerns instead a poorly drafted effort to federailize the delivery of health care, filled with seriously dangerous abuses of faundamental human rights such as the right to life. For now, the justices will confer, hold a secret ballot, and write their opinions, which will be announced in June. In the meantime, any comments on how the justices will ultimately rule are speculation.

Here is the reality. The acknowleged need for the reform of the Health Care system in the United States, including the reform of the draconian approach to "pre-existing conditions", the need to make insurance available to everyone....and so much more, might actually be able to be handled in a different way than the 2,700 page Bill which seeks to nationalize health care.At least that seems to be what will come of this important Supreme Court argument.   
 
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