Wednesday, March 28, 2012

Day 3 Recap: Severability

The Supreme Court heard argument on severability this morning. The question is what to do with the law if the individual mandate is struck down. The Obama administration asked the Court to strike down coverage of people with pre-existing conditions and premium calculations not based on health status if it strikes down the individual mandate. The states and NFIB said the whole law goes if the individual mandate goes. And the Court appointed a lawyer to argue that, if it strikes down the individual mandate, the rest of the law should stand.

The Obama administration's position was disputed by all of the Justices who asked questions. How do you decide to strike down some provisions but not others? Justice Scalia was very forceful; he was not inclined to go through 2700 pages of statutory language to try to figure out what provisions depended on the individual mandate and which do not. The Obama administration could not identify a principle that would sever some provisions but not others. But the Obama administration tried to point to lots of unrelated portions of the Act, and they expressed great concern about all the people under age 26 on their parents' policies up, all the Medicare drug discounts, the very existence of the Pre-existing Condition Insurance Plan -- what do we do about those portions of the law that have taken effect already? Does all of that just disappear?

The states and NFIB's argument was less difficult to articulate, but Justices Kagan and Sotomayor in particular felt that there was so much of the law that is not tied to the individual mandate -- Congress should not have to start over from scratch. Justice Scalia kept saying that the individual mandate is the heart of the Act, so if you remove the heart, how can you leave the rest? On the other hand, Congress did make a finding that the individual mandate was in the Act to make insurance affordable once you open the market to people with pre-existing conditions. But does that mean you just sever those provisions, as the Obama administration urged, or do you strike down the whole law? And if you strike down the individual mandate, pre-existing condition coverage, and premiums not based on health status, then haven't you really taken the heart out of the law?

The lawyer appointed by the Court was just brilliant -- by far, the best of the three arguments this morning. He said you leave it to Congress to decide what to do. Justice Scalia wasn't thrilled about this argument, but I think Attorney Farr had the best of the three arguments. Leaving the job of what to do to Congress best respects the Constitutional separation of powers.

And that's pretty much that. I'll be back a bit later (or possibly tomorrow morning) with this afternoon's argument on the Medicaid expansion. Jennifer

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