Filed Under:Your Practice, Regulatory

Severability Replaces Broccoli in the Sights of Legal Scholars

What's left on the plate after broccoli is gone? Image, AP
What's left on the plate after broccoli is gone? Image, AP

The severability of the Patient Protection and Affordable Care Act (PPACA) from the individual mandate has taken center stage after oral arguments concluded Wednesday in a three-day historic session before the Supreme Court.

Many feel that the constitutionality of the individual mandate is threatened based on questions from Justices Antonin Scalia and Anthony Kennedy and now all eyes have shifted to the severability question. The broccoli question became shorthand for the mandate in healthcare debates since the challenge arose to the PPACA and although U.S. Solicitor General Donald Verrilli argued to Scalia  that broccoli was not health care, it may not matter if the mandate is struck down and severability becomes the key question the Court will struggle with before its June decision.

“Many people who follow the Court had predicted that this argument could be a largely hypothetical (and therefore boring) one if it seemed clear yesterday that the Court would uphold the mandate.  But with the prospect that the mandate will be struck down very real, everyone was now watching this severability argument carefully.  And it was far from boring,” wrote Amy Howe, a legal scholar and partner at Goldstein & Russell, P.C., a Supreme Court litigation boutique. Howe wrote her assessment for the highly-regarded Scotusblog.com this week.

“It did not seem like five Justices of the Court wanted to throw out the whole ACA (although Justice Scalia certainly seemed to support that result), nor did it seem like the Court will agree ...that the rest of the Act can survive even if the mandate falls,” Howe noted in her entry,  Is half a loaf better than no loaf?

That half loaf, if the government has its way ONLY if and when the individual mandate for minimum coverage is struck down, would also include the tentacles of the mandatory coverage provision and the community rating provision. Scholars agreed there was support for this from the justices.

“The question before the Court, then, would be what else would go with the mandate? Will it limit itself to striking down the mandate and the two closely related provisions alone, or would it also conclude that other provisions with some relationship to the mandate must also go?”

Scotusblog’s Kevin Russell, also a partner at Goldstein & Russell and a former clerk of Justice Stephen Breyer, was one of many noting Scalia’s  apparent antagonism toward the entire handiwork of the act.

Justices “seemed to find all the available options unappetizing in various respects, with the exception of Justice Scalia who I understood as pretty firmly convinced that the Court should avoid the complexity troubling the others by striking down the entire statute,” Russell stated.

Michael Greve, constitutional scholar with the conservative American Enterprise Institute for Public Policy Research (AEI) referred to the other parts of the act that are not the mandate as  “ornaments on this Christmas tree that all of a sudden has fallen if the mandate falls.” 

If the varied mandates of the PPACA fell, some of the ancillary mandates that are already in effect, like insurance coverage for children up to age 26 on their parents’ plans, could be unravelled, in part or in whole, depending on the carrier and the states and of the mandates and so forth, according to Greve in an online interviewed posted on the AEI website. 

One thing seemed to be clear, though, according to Timothy Jost, “and Justice Scalia (and possibly Kennedy) acknowledged it.  The Congress we have today is not the Congress that we had in 2010, and if the Court throws out the entire statute, the ACA is not coming back.”

Jost, professor at Washington and Lee University School of Law and a consumer representative to the NAIC on healthcare, wrote this assessment  in the respected healthaffairs.org public policy blog this week. Jost filed, with many other professors of law, history and social/health policy,  an amicus brief  supporting the individual minimum coverage mandate as constitutional in January.

Jost posited the decision as now one of politics, with a possibility of harkening back to the Supremes' watershed decision after the 2000 election itself, which selected, in effect,  the country's new commander-in-chief:

“The Court thus faces an intensely political decision.  If it votes 5 to 4 to strike down the minimum coverage requirement (and there are only 5 possible votes for this result), and then strikes down the entire ACA, a Republican Court will have rejected the entire signature piece of legislation of a Democratic administration and Congress — it is Bush v. Gore all over again.  One has to wonder if the Court would retain any legitimacy after this, or whether it .will simply, and rightfully, be seen as a super legislature,” Jost wrote.

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