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Wendy Mariner On Severability: Laser Surgery, Friends & Family, Or Blow It Up?



March 30th, 2012
by Wendy Mariner

If the Supreme Court finds the individual mandate unconstitutional, will it strike down (sever) that provision alone, additional provisions regulating insurance, or the entire Affordable Care Act (ACA)?  That was the question before the U.S. Supreme Court in Wednesday morning’s oral arguments in the cases of National Federal of Independent Business v. Sebelius and Florida v. U.S. Department of Health & Human Services.  (See Tim Jost’s Health Affairs Blog post on how the lower courts in this case dealt with the severability question.) Although the need to answer this question remained hypothetical, the tenor of the questions gave the impression that a majority of Justices had already decided that the individual mandate should be struck down. Their questions to counsel more often concerned the practical consequences of such a decision than the niceties of severability doctrine.

The question of severability arose because Congress did not write anything into the ACA about what should happen if any of its provisions were found to be invalid. Sometimes Congress specifies that if a section is ruled invalid, it is to be severed from the law and the remaining sections are to remain in effect.  Here, the Court had to decide. It was presented with 3 options:
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  1. Laser Surgery: Sever only the provision requiring individuals to have minimum health insurance coverage.
  2. Friends and Family: Sever the individual mandate, together with 2 other sections of the ACA: one which requires insurers to sell insurance to anyone (guaranteed issue); and another that requires insurers to set premiums at the same price (albeit adjusted for age, location, and smoking) for everyone in the pool (community rating).
  3. Blow it All Up:  Strike down the entire Affordable Care Act.

Option 1:  Laser Surgery

For statutes without any severability provision, the presumption generally has been that only the invalid provision should be removed, and for good reason.  Other provisions have not been challenged, and the Court has not had any opportunity to study them. H. Bartow Farr, III, made a lucid and persuasive legal argument for this position. He was appointed by the Court as amicus curiae to do so, since neither party proposed the first option. In this case, no one has suggested that anything else in the ACA is unconstitutional, except the section expanding Medicaid eligibility (and that claim, already somewhat implausible, appeared even weaker after it was argued before the Court). Moreover, some provisions have already gone into effect and the rest can operate effectively whether or not the individual mandate remains.

As Justices Ginsburg and Breyer pointed out, most of the ACA (8 of its 9 titles) has nothing to do with private insurance, much less the individual mandate, but with amending Medicare and Medicaid and other unrelated statutes; improving health care workforce education and training, rural health services, and the Indian Health Services; research on the quality and effectiveness of care; funding public health initiatives; and improving the transparency of health care operations and financing.  As a whole, the ACA is intended to improve the health care system, as well as access to effective services. The individual mandate is a minor addition, a tool to make the most important provisions prohibiting discrimination in insurance work well.

The Justices interrupted Mr. Farr less than half as often as they questioned the Deputy Solicitor General, Edwin Kneedler, and only 2/3 as often as they questioned Paul Clement, representing the states. If studies finding that the party who receives fewer questions is more likely to win are correct, then the arguments favored Option 1.  However, the tenor of the discussions of Options 2 and 3 suggested that several Justices were less concerned with the doctrine of severability than with their views of the ACA and the power of the Court.

Option 2:  Friends and Family

The idea of invalidating concededly constitutional provisions that the Court has not considered should raise eyebrows. Yet the federal government itself proposed Option 2, in effect inviting the Justices to edit the statute. This raised the question, posed several times by Justice Sotomayor to little effect, of what test the Court should use to determine which, if any, other provisions should be struck down.

Arguing for the second option, Edwin Kneedler, Deputy Solicitor General, asked the Court to look to the structure and text of the Act, as well as the legislative history, an approach that gives the Court considerable discretion.  He asserted that the individual mandate was textually linked to the guaranteed issue and the community rating provisions, so if the mandate falls, these provisions should fall with it. This position is nearly impossible to defend, either legally or factually.

By the way, the “textual link” that Kneedler mentioned is a tenuous one. It comes from Congress’s findings, not any operative text in the law itself. There Congress “found” that the mandate was needed to prevent individuals from waiting to buy insurance until they needed care.  But, as Mr. Farr made clear, Congress used the word “essential” there in a frankly self-serving way to fit the mandate within language used in Supreme Court precedents describing matters that can be regulated as part of interstate commerce. Farr was absolutely correct on this point, but facts seemed to matter less than ideology in the Justices’ reactions. Chief Justice Roberts said that it made the government’s case for Option 2.

The text of the sections on guaranteed issue and community rating, however, does not refer to “minimum essential coverage” (the individual mandate). Other sections do – those concerning health insurance exchanges, employer-sponsored plans, and Medicaid eligibility. Thus, internal statutory references cannot be the reason for linking the three provisions.  Instead, the rationale for linkage appears to be to protect the insurance industry from being forced to sell insurance policies to all comers at community rates without ensuring that healthy, cheaper people also enroll in the pool.  If those provisions were eliminated, insurers could refuse to sell to high risk people.  There was perhaps no need to remove the prohibition against excluding coverage of preexisting conditions, since insurers would not have to sell to anyone with a preexisting condition. In other words, the government’s proposal would not significantly change current uninsurance rates for those not eligible for Medicaid.

As Abbe Gluck and Michael Graetz noted in a New York Times op-ed, the government “is urging the Supreme Court to abandon its tradition of judicial restraint.”  The Justices offered no doctrinal reason why the practical effect on the insurance industry should control the severability analysis. Nor did they indicate how they might pick and choose which provisions should stay and which should go.  Instead, Chief Justice Roberts and Justices Scalia, Alito and Kennedy voiced sympathy for the plight of insurers, not sick people, if the mandate alone were excised. Justice Kennedy even suggested that the Court “would be exercising judicial power if one . . . provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended.”  Justice Scalia also seemed eager to decide the legitimacy of other provisions in the ACA. He suggested that the Court could find these other provisions illegitimate, not because Congress had no power to enact them, but because “they are so closely allied to one that has been held to be unconstitutional that they also have not been legitimately enacted.”

Option 3: Blow the Whole Thing Up

Paul Clement, representing the states, argued for the third option, saying that if the individual mandate is unconstitutional, then the entire Affordable Care Act – all 2,700 pages – should be invalidated, because nothing could be retained without counteracting its overall goal.  He called the individual mandate “the heart of the Act.”   Everything else was, at best, “at the periphery.” This turns the structure of the ACA on its head, because it assumes that the rest of the ACA was enacted only to support an individual mandate, whereas the mandate was enacted to help the insurance provisions in one title of the Act.

Mr. Clement argued that so many other provisions are “tied at the hip” or “joined at the hip” to the individual mandate that nothing should be kept.  It got one to musing about hip bones connected to thigh bones, knee bones and ankle bones, so it is not surprising that some Justices might see everything connected, even though Mr. Clement’s examples were limited to a few insurance provisions in Title I.

Justice Scalia was enthusiastic about Option 3, saying “My approach would say if you take the heart out of the statute, the statute’s gone.   He felt competent to toss out the whole ACA, even though he made it clear that he had not and would not read the entire statute. Indeed, by referencing the 8th Amendment, he suggested that it would be cruel and unusual punishment to have to read the ACA. But, if the Justices do not have the expertise or time to understand such a complex statute as the ACA, it is implausible to suggest that their duty is to strike down the whole Act.

Mr. Clement argued that “half a loaf is worse” than none.  Congress should fix the health care system, not just this statute. The Court should give Congress “a clean slate.”  This echoed ACA opponents’ public relations mantra – “repeal and replace” – except that no one in the room seemed to believe that Congress would actually replace the ACA with a new national health reform proposal.  Justice Sotomayor pointed out that Congress always has the power to amend, repeal or enact new legislation. Nothing the Court does changes that,  but the Justices seemed to think that Congress could not get the job done.

Does the Court Judge or Edit the Law?

The discussion of these options revealed starkly different views of the power of the Court.  Justice Scalia seemed to believe in an imperial judiciary that has the power to rewrite the law because the legislature was incapable of getting it right.  If that is not judicial activism, nothing is.  And it did not go unnoticed.

Even Justice Kennedy seemed to believe that the Court should be writing the statute.  If the Court does not strike down at least the other insurance provisions, he asked, “Is it within the proper exercise of this Court’s function to impose that kind of risk?”

Both Chief Justice Roberts and Justice Scalia appeared worried that other provisions of the ACA should be challenged, but never would be, because no one would have standing to bring a claim.  The obvious response to that is, so what?  Both Justices have upheld statutes that preclude anyone from bringing a legal claim. Moreover, some statutes can be challenged when defending against an attempt to enforce the statute against a person.  Other statutes, like Medicare, provide administrative review procedures that serve the same purpose. And, of course, the most obvious way to change a statute is to engage Congress in amending it.  The insurance industry is likely to ask Congress to relieve them from some of the ACA’s requirements if the individual mandate alone is struck down.

Nonetheless, all the Justices seemed to agree that legislative horse-trading and “parliamentary shenanigans” make it impossible to know exactly what provisions of any statute would have been enacted in the absence of one particular section. For the liberal-leaning Justices, that is reason enough not to engage in speculation or rewrite the statute. For Justice Scalia, however, it was a reason to overturn the entire ACA.

It was the so-called liberal Justices that spoke in terms of judicial restraint.  Justices Ginsburg, Breyer, and Sotomayor asked why the Court shouldn’t let Congress fix anything they found troubling about the loss of the mandate. After all, there are three branches of government, and the judiciary does not write statutes. Justice Kagan noted that it would be a “revolution in our severability law” to ask the Court to try to determine what Congress would have enacted if the individual mandate had not been included in the first place.  Only Mr. Farr provided examples of ways to make the ACA’s insurance provisions work without the individual mandate.

Conclusion

An argument that most expected to center on the dry doctrine of remedies revealed Justices divided along ideological lines.  This oral argument will only encourage the belief that the Court is as political as Congress.  For those interested in health policy, it was especially disappointing to see how little many of the Justices understood or cared about how the health care system works. Equally concerning was the way in which several Justices worried about the financial health of a health insurance industry they did not understand, while ignoring what happens to sick people. The arguments also demonstrate that both health policy analysts and health lawyers need to do a much better job of educating the public and policy makers.

Editor’s note: For more on the severability oral arguments, see additional Health Affairs Blog posts by Timothy JostAlice Noble and Mary Ann Chirba, and William Sage.

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