This is the third in my series of posts about the major issues at stake in next week’s arguments at the Supreme Court regarding the constitutionality of Obamacare, or, the Affordable Care Act (ACA). Yesterday, I discussed the “individual mandate,” the part of ACA that creates a legal duty to obtain health insurance. Yes, the government has some arguments up its sleeves and, sadly, can rely on some New Deal-era precedents, as well as more recent cases (like the medical marijuana case, Gonzales v. Raich) to support the mandate. But of course, I think the opponents of the mandate have the better of the argument.
If the Court does strike down the individual mandate, what happens to the rest of ACA? The law is over 2,700 pages long – suffice it to say there’s a lot in there besides the individual mandate. However, the individual mandate is the part that is supposed to make the whole thing affordable. By requiring younger, healthier individuals to get health insurance, ACA aims to broaden the insurance pool and thus bring down premiums. (Of course, many others have pointed out that Obamacare will do no such thing; in fact, premiums are rising in anticipation of 2014 ... but I leave the policy arguments aside for now).
It’s very common for federal statutes to include a so-called “severability clause,” which states that if any provision of the law is found to be invalid, the rest of the law will continue in operation. But the ACA does not have a severability clause, so there is no clear answer as to whether Congress intended the healthcare law, or parts of it, to survive even without the individual mandate. In one ruling, Senior U.S. District Judge Roger Vinson held that Congress intended all of Obamacare to hang together. Therefore, since Vinson found the mandate was invalid, he also concluded that the entire statute must fall. On appeal, the Eleventh Circuit agreed that the individual mandate is unconstitutional, but the Court held that the rest of the ACA could survive. The fact that Congress failed to insert a severability clause, said the Court, is not decisive. At SCOTUS, the states' briefs have generally picked up Judge Vinson's argument that the components of the ACA are too inter-connected to be upheld if the mandate is struck down.
The administration, as usual, is tripping over itself. On Tuesday it will argue that the mandate is "necessary and proper" because it is an integral part of a "comprehensive regulatory scheme" to regulate the market for health insurance. But on Wednesday, the mandate will suddenly be not so integral to the whole scheme, but will instead be a free-floating provision that can be severed from the rest of the law.