The Supreme Court cant rewrite or repeal legislation, only Congress can do that.
If the IM is struck down, Congress could rewrite or amend the legislation to remove the offensive language, per the ruling. See:
United States v. Lopez, 514 U.S. 549 (1995). as an example.
In
Lopez, the Court struck down a law banning guns in the vicinity of public schools, stating that the Commerce Clause did not authorize Congress to do so. Congress simply rewrote the legislation and the law is in effect today.
Congress could also repeal the legislation and enact a new reform law, highly unlikely given these hyper-partisan times.
Although just as highly unlikely and entering uncharted waters, Congress could also ignore the ruling. This would be possible because the Administration would argue that the mandate in fact forces no one to do anything.
In order for the Court to invalidate the IM, the Majority would need to construe the garnishment of ones income tax refund or threat of a lawsuit by the IRS if no refund exists as a punishment on the scale as the penalties created in
Lopez and
Morrison. In the two laws reviewed, Congress authorized either a criminal penalty (
Lopez) or a penalty as a result of a civil suit (
Morrison).
Neither penalty exists in the ACA, if one refuses to purchase health insurance, he would not be subject to criminal prosecution, nor would he be subject to civil penalties. If one refuses to pay the penalty tax (fee), the worst case is his income tax refund will be garnished. A civil suit by the IRS is also possible, but thats not part of the actual ACA legislation and would be pointless, as the cost of litigation alone would likely exceed any funds recovered.
From Section 1502 of the ACA:
(A) WAIVER OF CRIMINAL PENALTIES.In the case of
any failure by a taxpayer to timely pay any penalty imposed
by this section, such taxpayer shall not be subject to
any criminal prosecution or penalty with respect to such
failure.
http://housedocs.house.gov/energycommerce/ppacacon.pdf
The authors of the ACA were obviously aware of
Lopez/Morrison, and wouldnt intentionally compose legislation they knew might be struck down by the courts given a challenge likely in such a charged political climate.
The IM therefore is an economic mandate; in essence, a bluff an assumption that a significant number of citizens will want to avoid any Federal entanglements altogether and simply purchase insurance or pay the fee. But no one is ultimately forced to buy health insurance. Consequently
Lopez/Morrison doesnt apply, and the IM is Constitutional where the Commerce Clause authorizes Congress to implement the requirement in its effort to regulate the health insurance industry.
There is also a final action possible by the Court, where it could rule that the Anti-Injunction Act bans challenges to the IM until after it goes into effect and a taxpayer actually pays the penalty for failing to purchase health insurance. At which time the taxpayer may file suit in Federal court challenging the constitutionally of the statute.
In the end, conservative opposition to the ACA is purely partisan, not legal, as the conservative argument that the ACA forces people to obtain health insurance against their will is clearly untrue and predicated on ignorance, as the Act authorizes no criminal or civil penalties. Their desire is to see only the president humiliated by having his signature legislation struck down, having nothing to do with the facts of the Act, the Constitution, its case law, or a concern for Americans civil liberties.
In addition, conservative opposition to the ACA exhibits their hypocrisy with regard to judicial review.
It is a fundamental tenet of conservative jurisprudence that a legislative act reflecting the will of the people and our democratic process be overturned only in the rarest of occasions, and only when a clear and blatant violation of the Constitution exists. For conservatives, courts voiding measures enacted by law-making bodies constitutes legislating from the bench and judicial activism, now we see those very same conservatives advocating the Court legislate from the bench and overturn an Act of Congress reflecting the will of the people as expressed through the democratic process.
This hypocrisy is not surprising, of course, but it is telling.
