But he and Kennedy both suggested that it would be more respectful to Congress to give it a blank slate than to hand it back a massive law, with its key provisions excised.
"Do you really think that that is somehow showing deference to Congress and respecting the democratic process? It seems to me it's a gross distortion of it," Scalia said.
Kennedy envisioned an outcome in which the insurance requirement is struck down, but the court leaves in place other requirements forcing insurers to accept people regardless of existing medical conditions and to limit the premiums for older people.
"We would be exercising the judicial power if one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended. By reason of this court, we would have a new regime that Congress did not provide for, did not consider. That, it seems to me, can be argued at least to be a more extreme exercise of judicial power than striking the whole," he said.
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