The question of severability relates to the constitutionality of the coverage mandate: if the mandate is struck down, can the rest of the ACA still stand? Lawyers for the health law opponents argued that the mandate is a critical and inseparable component of the rest of the law; if it is found to be unconstitutional, the entire ACA must go. Lawyers for the Obama Administration made the case that most of the ACA is unrelated to the coverage mandate. In fact, they said, only a few provisions must be struck down if the mandate is found to be unconstitutional. These include the guaranteed issue provision (requiring insurers to provide coverage to anyone regardless of their pre-existing health conditions) and the community rating provision (preventing insurers from charging sharply higher rates for individuals with poor health).
Reporters inside the courtroom noted that the Justices did not seem inclined to strike down the entire law – yet, they had many questions about how to determine what other provisions must go if the mandate is struck down. Justice Antonin Scalia suggested that making anyone read through the entire 2,700-page bill to decide exactly which portions are central to the mandate would violate the 8th Amendment’s strictures against “cruel and unusual punishment.” Legal experts observed that the Court appeared to be struggling with the severability question and could not clearly predict which way they would decide.
Following the arguments on severability, the Court heard the case for and against the Medicaid expansion. Most legal scholars have agreed that the case against the Medicaid expansion is weak. Congress has long made it clear that states participating in Medicaid may be required to adhere to certain rules and conditions in order to receive federal matching funds, and the Courts have upheld this prerogative over decades of litigation. Nonetheless, the Justices asked many questions relating to the limits of federal “coercion” in state decision-making and the extent to which the Medicaid expansion constitutes coercion. The National Council has published a full analysis of the challenge to the Medicaid expansion – and the host of laws that would be affected should the expansion be struck down – on our blog.
Although it was widely agreed that the U.S. government’s legal team did not perform as well as supporters may have hoped, legal experts acknowledged that there is no way to accurately predict the Supreme Court’s ruling based on oral arguments alone. The Court is expected to issue its decision in late June, near the end of its session.
In Case You Missed It: Past National Council Analyses
- A summary of the 4 key points at stake in the health law challenge
- An analysis of the Anti-Injunction Act question, which could prevent the Court from ruling on the ACA until after it actually goes into effect
- An analysis of the coverage mandate question
- An analysis of the Medicaid expansion question
- Our roundup of Day 1 of the Supreme Court hearing
- Our roundup of Day 2 of the Supreme Court hearing
What We’re Reading Today
- If the government can require you to buy health insurance, can they also force you to eat broccoli? Bloomberg examines the slippery slope argument
- Talking Points Memo has a breakdown of how health reform politics could affect the 2012 elections
- Ezra Klein writes on “The 3 ways the Court could rule against Obamacare’s mandate”
- NPR’s Ari Shapiro summarizes yesterday’s arguments
- The Wall Street Journal continues its excellent liveblog of the 3-day event
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