Justice Breyer on Obamacare: 'I Haven’t Read Every Word of That, I Promise’

Susan Jones and Terence P. Jeffrey | March 30, 2012 | 11:32am EDT
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Justice Stephen Breyer (AP Photo/Danny Johnston)

(CNSNews.com) - In oral arguments in the Supreme Court on Wednesday, Justice Stephen Breyer “promised” he had not read the entirety of the 2,700-page health-care legislation the court was examining.

He also suggested it would be unreasonable for the lawyers arguing over the constitutionality of the law to expect the justices to “spend a year reading all this” to determine which parts of it should be allowed to stand if the court decides to strike down as unconstitutional the law’s mandate that individuals must buy health insurance.

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The issue in the court on Wednesday was the “severability” of various parts of the 2,700-page legislation—that is, which parts of it, if any, the court should allow to stand on their own as enforceable law if the individual mandate did not survive constitutional scrutiny.

“Could I ask you one question, which is a practical question,” Breyer asked of Paul Clement, the lawyer representing the state of Florida in the case.

“I take as a given your answer to Justice Kennedy,’ said Breyer, “you are saying let's look at it objectively and say what Congress has intended, okay? This is the mandate in the community, this is Titles I and II, the mandate, the community, pre-existing condition, okay? Here's the rest of it, you know.

“And when I look through the rest of it, I have all kinds of stuff in there,” said Breyer. “And I haven't read every word of that, I promise.

“As you pointed out, there is biosimilarity, there is breast feeding, there is promoting nurses and doctors to serve underserved areas, there is the CLASS Act, etcetera,” said Breyer.

“What do you suggest we do?” said Breyer. “I mean, should we appoint a special master with an instruction? Should we go back to the district court? You haven't argued most of these. As I hear you now, you're pretty close to the SG [the Obama administration’s solicitor general]. I mean, you'd like it all struck down, but we are supposed to apply the objective test. I don't know if you differ very much.

“So what do you propose that we do other than spend a year reading all this and have you argument all this?” said Breyer.

Also on Wednesday, Justice Antonin Scalia jokingly invoked the Eighth Amendment—which prohibits cruel and unusual punishments—when discussing the “severability” issue with Deputy Solicitor General Ed Kneedler. Scalia’s remarks elicited laughter from the audience in the court chamber.

“Mr. Kneedler, what happened to the Eighth Amendment? You really want us to go through these 2,700 pages?” said Scalia.

“And do you really expect the Court to do that? Or do you expect us to give this function to our law clerks?” said Scalia.

“Is this not totally unrealistic? That we're going to go through this enormous bill item by item and decide each one?” he said.

When the health-care bill was being considered in Congress, then-House Judiciary Chairman John Conyers mocked the idea that legislators needed to actually read the health-care bill before they voted on it—or that they would understand the bill if they did read it.

“I love these members, they get up and say, ‘Read the bill,’” Conyers said in a July 24, 2009 speech at the National Press Club.

“What good is reading the bill if it’s a thousand pages and you don’t have two days and two lawyers to find out what it means after you read the bill?” said Conyers.

In a speech delivered March 9, 2010, twelve days before the House passed the health-care legislation, then-House Speaker Nancy Pelosi said, “But we have to pass the bill so that you can find out what is in it.”

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