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.
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: