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HCR at the Supreme Court: Day 3

The Court has heard the third day of oral arguments on the Affordable Care Act (ACA).  Today’s topics were Severability and Medicaid expansion.

Severability – Click here to access the audio and transcripts.
Medicaid – Click here to access the audio and transcripts.

On the severability issue, the general opinion of those who were in the courtroom and heard the arguments seems to be that the court seems to be leaning toward not severing the individual mandate if they hold it unconstitutional.  That is, if the Court invalidates the individual mandate, they are likely to invalidate the entire health care reform act.

The reason seems to be that the Court is unsure how it would figure out which of the myriad of other provisions should also be struck down and which should remain, if they invalidate the individual mandate. Would the Court have to review the other 2700 pages of the Act?  Justice Scalia suggested that this would violate the Eighth Amendment (the prohibition against cruel and unusual punishment).  (Who says Supreme Court Justices don’t have a sense of humor?)

Even if the court does not strike down the entire Act (assuming it holds the individual mandate unconstitutional), there seems to be general agreement that the Court is likely to at least invalidate the guaranteed issue and community rating provisions.  The Court expressed concern about how the Act and the insurance industry would function if the individual mandate were held unconstitutional but these provisions were left standing.

Some commentators also speculated that the Court might invalidate only the individual mandate and let Congress figure out which, if any, of the other provisions should be severed.  This seems to me like a dangerous course of action, given Congress’s inability to agree on much of anything in the past year. But Courts don’t want to be in the business of legislating, since that is what Congress is supposed to be doing.  Also, the legal standard on severability is to sever only what is clearly unconstitutional and let the rest stand, so it’s possible the Court will leave it to Congress to decide how to fix the Act if the Court invalidates the individual mandate.

One journalist suggested that the difficulty in determining which provisions should be severed if the Court strikes down the invididual mandate may tip the scales and result in the Court upholding the individual mandate.

Of course, the pundits’ predictions are merely speculation at this point.  The Court’s decision is not expected until the end of June.  That’s the “conventional wisdom,” and until yesterday the “conventional wisdom” was that the Court was likely to uphold the Affordable Care Act.  Who knows, maybe the Court will issue its decision in May, so the country can start figuring out what is the next step in reforming the US health care delivery system?

Medicaid Expansion:  Click here to read Kaiser Health News’ Excerpts of the Severability and Medicaid Expansion arguments on Day 3.

Three websites with excellent detailed coverage of the health care reform arguments at the Supreme Court are:

And of course, the official US Supreme Court website with the transcripts and audio of the oral arguments: