KC Health Care Reform

• Analysts were divided on predictions for how the Court will rule on this question.
• The arguments about severability deal with what happens to the rest of PPACA if the individual mandate is struck down.
• Three options were suggested:
  • Strike down the whole law.
  • Strike down the mandate, guaranteed issue, and community rating.
  • Strike down only the mandate.

Question: If the individual mandate is unconstitutional, does that mean the rest of the law is invalid?

Severability addresses the question of what happens to a law if one provision is found unconstitutional. Previous cases have not established a clear answer to this question, but the Court has often looked at whether the law can operate in the way Congress intended without the unconstitutional provision. It could also look at what Congress would want, i.e. would it want the Exchanges to exist without the mandate or would it want to start from scratch?

Yes, the Court should strike down all of PPACA

• This position was argued by the challengers to the law.
• Not striking down the whole law is the equivalent of the Court making laws because Congress would not have passed PPACA without the mandate.
• Lots of the provisions are indirectly tied to the mandate (i.e. Exchange is designed to compare community-rated plans).
• It is too complicated for the Court to try to determine, line by line, which provisions are tied to the mandate and which are not.
• Even if the Court could separate out all of the provisions that are tied to the mandate, all that would be left is a “hollow shell.” Congress would not want just a few of the provisions to stand if the bulk of the law was struck down.

No, the Court should only strike down the individual mandate, guaranteed issue, and community rating

• The mandate is “essential” to the guaranteed issue and community rating provisions. This is supported by the Congressional findings published during the debate, which the Court should use to determine intent.
• The mandate is not essential to the other provisions in PPACA, so those should be allowed to continue.
• Congress’ intent was to tie these three provisions together in a different way than the mandate is tied to any other provision.

No, the Court should only strike down the individual mandate

• This would be the least “active” approach because it only removes the unconstitutional parts and lets Congress decide if it wants all the other provisions to stand.
• If only the mandate is unconstitutional, then there is no “legal” cause for striking down the rest of the law.
• It is not clear that the rest of the law cannot work without the mandate.

Conventional Wisdom

Analysts were divided in their predictions about this part of the case. This is probably because most of the Justices did not provide a clear signal as to which of the three options they preferred.