ACA On Trial Part V: Severability and to What Extent

Day Three of Supreme Court Arguments
      by Christina Sochacki R.N., J.D.

[As published on CAHC.net, here]

This morning’s arguments centered around the question: If the Court strikes down the mandate, what happens to the rest of the law? With hundreds of pages of text, including sections concerning the Indian Act, black lung disease, wellness programs, and others, which, arguably, have no relation to the individual mandate, the court must decide if one part of the law is invalidated, is it severable and to what extent, from the rest of the law.



Mr. Kneedler, Deputy Solicitor General for the administration, argues that if the individual mandate is struck down as unconstitutional, then only two provisions of the law would have to fall, the pre-existing conditions requirement (guaranteed issue) and community rating – the rest is severable.

Challengers of the law argue that the entire law would fail if the individual mandate falls.

Again, the Court hired a lawyer to argue a third position: if the individual mandate falls then it falls by itself – all other provisions of the law can remain standing.

Mr. Clement, lawyer for the challengers to the law, opened his arguments stating that “the community-rating and guaranteed-issue provisions of the Act cannot stand without the individual mandate.” Mr. Clement cautioned that “if you do not have the individual mandate to force people into the market, then community rating and guaranteed issue will cause the cost of premiums to skyrocket.”

Furthermore, Mr. Clement argued that the question that the Court should ask is “not just whether they can limp along and they [the exchanges] can operate independently, but whether they operate in the manner that Congress intended. And that’s where I think the exchanges really fall down.”

Justice Kegan contends that severability exists because, “[i]t seems to me that if you look at the text, the sharp dividing line is between guarantee issue, community ratings, on the one hand, everything else on the other.”

Justice Scalia articulated his view by saying, “[m]y approach would say if you take the heart out of the statute, the statute’s gone. That enables Congress to – to do what it wants in – in the usual fashion. And it doesn’t inject us into the process of saying: This is good, this is bad, this is good, this is bad.”

Mr. Farr, arguing by Court appointment for the third viewpoint, argues that “even though the system is not going to work precisely as Congress wanted, it would certainly serve central goals that Congress had of expanding coverage for people who were unable to get coverage or unable to get it at affordable prices.” Mr. Farr concludes that if the individual mandate falls, all else can remain intact.

On rebuttal, Mr. Clement disagreed, “to look at what Congress was trying to do, you need look no further than look than the title of this statute: Patient Protection and Affordable Care.” He argues that the community rating and guaranteed-issue are the “crown jewels of the Act” – to provide patient protection. And the affordable part of the Act is the individual mandate. “If you strike down guaranteed-issue, community rating and the individual mandate, there is nothing left to the heart of the Act,” argued Mr. Clement.

Notable, often laughable, quotes from the Court: Supreme Court AIA Arguments

JUSTICE SCALIA: And there is nothing about federal support that is unsustainable, right? That is infinite.

JUSTICE SCALIA: Mr. Kneedler, what happened to the Eighth Amendment? You really want us to go through these 2,700 pages?

JUSTICE KENNEDY: So do you want us to write an opinion saying we have concluded that there is an insignificant risk of a substantial adverse effect on the insurance companies, that’s our economic conclusion, and therefore not severable? That’s what you want me to say?

MR. FARR: It doesn’t sound right the way you say it, Justice Kennedy.

JUSTICE KENNEDY: Is that the real Congress or a hypothetical Congress?

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Today’s oral arguments audio and transcript can be found here.

For further reference read Parts I, II & III of the ACA on Trial Series

ACA on Trial Part I: An Overview

ACA on Trial Part II: Possible Outcomes

ACA On Trial Part III: Tax or Penalty?

ACA On Trial Part IV: The Individual Mandate

ACA On Trial Part V: Severability and to What Extent