The third day of oral arguments on the Affordable Care Act was something of an anticlimax. There were two issues. The first was whether, if the “individual mandate” (the requirement that all persons have health insurance) is struck down as unconstitutional, all, some or none of the rest of the Act should continue to stand despite that. This is the issue of “severability.” In deciding severability questions, courts normally consider whether the legislative branch would have wanted the rest of the statute to survive if a part of it is struck down.
On this issue, as on all the others, the Court seemed to divide along all-too-familiar ideological lines. Representative of the more moderate wing of the Court was the suggestion by Justice Sotomayor that Congress is best suited to determine which portions, if any, of the Act should remain standing, and that the Court should leave that decision to Congress rather than making that determination itself. On the other side, Justice Scalia complained that the Court should not have to wade through the 2,700 pages of the Act to determine what, if anything, to salvage, and should simply throw out the whole Act if the individual mandate falls. Justice Kennedy, who as often may be the swing vote, questioned whether the failure to strike the entire Act would impose “a new regime that Congress did not provide for, did not consider.” That, he mused, “can be argued” to be a greater violation of judicial restraint than striking the whole statute.
The severability issue is difficult. The Court should not have to reach it, however, if it decides, as it should, to uphold the individual mandate.
The second issue was whether an aspect of the Act that increased Medicaid funding to the states but deprived the states of federal Medicaid funding if they did not go along with the expansion of Medicaid eligibility that came with the increased funding was unconstitutionally coercive of the states. On this issue, the Government seemed to fare better than it had at any other time in the three days of oral arguments relating to the Act.
In my view, the Government has the better of the argument, since the federal government has provided funds with “strings attached” for many years without objection by the Court, and it is not clear how coercive it is to offer additional funding provided that eligibility for those funds is expanded. But this might yet be the case in which the Court decides that the line between “strings attached” and coercion has been crossed.
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