Some Supreme Court justices generally regarded as being likelyto reject the Patient Protection and Affordable Care Act of 2010(PPACA) individual mandate provision were expressing uncertaintytoday about when and why they should strike down an entire lawbecause they have struck down part of the law.

The court was holding its third and last day of oralarguments on the constitutionality of the law.

PPACA supporters believe the effort to uphold the law has 4 firmvotes. Some are saying Associate Justice Anthony Kennedy may be theObama administration's best hope of rounding up a fifth vote.

See end of story for links to unofficial Supreme Courttranscripts and audio recordings of the oral arguments.

The PPACA individual mandate provision calls for manyindividuals to have health coverage in 2014 or else pay apenalty.

Some have argued that the court must strike all of PPACA if itknocks out any part of the act, because Congress included no“severability clause,” or provision declaring that the act as awhole remains valid if part of the act is tossed out.

Kennedy seemed to express frustration with lawyers for bothsides as the day went on.

Paul Clement, a lawyer representing the states that have sued toblock implementation of PPACA, made the argument that the courtshould invalidate most or all of the rest of the act if it rejectsthe individual coverage mandate.

Kennedy asked what test Clement would have the court use todecide when it can kill just part of a law or when it must kill theentire law.

“Is it whether as a rational matter separate parts could stillfunction, or does it focus on the intent of the Congress?” Kennedyasked.

He gave an example of Congress passing an airline bill and amilk bill together, in the same package.

“Then one is declared unconstitutional,” Kennedy said. “Theother can operate completely independently. Now, we know thatCongress would not have intended to pass one without the other. Isthat the end of it, or is there some different test? Because wedon't want to go into legislative history, that's intrusive, so weask whether or not an objective — as an objective rational matterone could function without — I still don't know what the test isthat we are supposed to apply.”

“I'm a big believer in objective tests, Justice Kennedy,”Clement said. “I would be perfectly happy with you to apply a moretextually based objective approach. I think there are certainjustices that are more inclined to take more of a peek atlegislative history, and I think if you look at the legislativehistory of this it would only fortify the conclusion that you wouldreach from a very objective textual inquiry. But I am happy tofocus the court on the objective textual inquiry.”

Chief Justice John Roberts said he did not understand Clement'sresponse, and Kennedy asked Clement again to describe an objectivetest the court could use. Justice Elena Kagan said she was not surethe Supreme Court had ever refused to sever a rejected provisionfrom an act for the reasons Clement was providing.

Justice Stephen Breyer asked why the courtshould refuse to sever provisions such as a PPACA provisionpromoting breastfeeding if the court ends up invalidating theindividual coverage mandate.

Roberts talked about severability earlier.

Much of the content of PPACA “is reauthorization ofappropriations that have been reauthorized for the previous 5 or 10years, and it was just more convenient for Congress to throw it inin the middle of the 2,700 pages than to do it separately,” Robertssaid. “I mean, can you really suggest — I mean, they've cited theBlack Lung Benefits Act and those have nothing to do with any ofthe things we are talking about.”

Later, however, Kennedy told Edwin Kneedler, a lawyerrepresenting the Obama administration, that severing the individualmandate from the rest of the PPACA could be a more extreme exerciseof judicial power than knocking down the whole act.

“We would be exercising the judicial power if one act was — oneprovision was stricken and the others remained to impose a risk oninsurance companies that Congress had never intended,” Kennedysaid. “By reason of this court, we would have a new regime thatCongress did not provide for, did not consider.”

Link to the unofficial Supreme Court transcript ofthe oral arguments.

Link to the Supreme Court MP3 audio recording ofthe oral arguments.

This story originally appeared on LifeHealthPro, a sister site toPC360.