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In the event that the Supreme Court strikes down the individual mandate of the Affordable Care Act, the Court will have to decide whether the remainder of the Act, or certain provisions of the Act, are "severable" from the individual mandate and therefore constitutional.  A number of organizations have filed amicus briefs asking the Court to spare specific provisions of the Act. The number and significance of these provisions remind us how vast and encompassing this law is, and how unlikely it is that the Supreme Court will declare it unconstitutional.

The AARP and several other organizations who advocate on behalf of Medicare not surprisingly contend in their brief that certain provisions of the law strengthening Medicare should be insulated from being struck down with the individual mandate.  The provisions they hope to keep afloat include the elimination of the "donut hole" (a deductible) for prescription drugs; access to preventive health services; access to chemotherapy and dialysis; incentives to improve quality of care; provisions that would permit persons receiving long-term care to remain in the community and avoid institutionalization; provisions improving coordination of services; and provisions aimed at preventing neglect and abuse of the elderly.

The amicus brief of the National Indian Health Board, other Indian organizations and tribes argues that the reauthorization of the Indian Health Care Improvement Act and other provisions of the ACA improving medical services to Indians are severable from the individual mandate and should be preserved.

In its brief the Washington & Lee University Law School Black Lung Clinic argues that if the individual mandate is struck down the remainder of the ACA should be upheld in its entirety, particularly Section 1556, the Black Lung Benefits Act, which extends eligibility for federal benefits for several of the clinic's clients.

A brief filed by about 50 Asian-American advocacy organizations maintains that the Affordable Care Act contains a number of provisions that address the "unique health care needs" of Asian-Americans and that will increase access to health care for all Americans.  These provisions include the SHOP Act that extends tax credits to small businesses allowing them to provide health care to owners and employees; Medicaid expansion; tax credits for individuals to purchase health insurance; enhanced coverage for dependents; and elimination of exclusions for preexisting conditions.  The brief also identifies several provisions of the law creating programs specifically addressing the health needs of minority communities including the promotion of culturally and linguistically appropriate care, increasing the diversity of the medical workforce, and enhanced data collection and analysis.

The brief of the American Public Health Association, American Lung Association, and about a dozen similar advocacy groups ask the Court to preserve a number of preventive and public health programs that are addressed to the treatment of chronic diseases in the United States:

"Amici public health and prevention organizations write here to emphasize the crucial importance of federal public health and prevention initiatives not only for the well-being of millions of individuals but also for the United States itself."
A number of physician groups including the Society for Internal Medicine point out in their brief (as I have) that the parties who argue that the individual mandate is not severable from the remainder of the ACA because it is so integral to the entire Affordable Care Act are in effect making "a lengthy concession that the minimum coverage provision is an 'essential part of a larger regulation of economic activity' and therefore constitutional" under the Necessary and Proper Clause.  Somewhat contradictorily, in their brief these groups ask the Court to uphold as severable from the individual mandate provisions of the law extending access to health care to underserved areas, fostering primary care, and promoting comparative effectiveness research.

A number of amicus briefs argue that the Act as a whole is entirely severable from the individual mandate.  This is the position taken in the brief submitted by David R. Riemer and Community Advocates, a Milwaukee activist and group that assists the poor in gaining access to medical care.  They say:

One of the ACA's key goals is to reduce the number of uninsured Americans.  Regardless of the fate of the individual coverage provision, the ACA will move the nation a long way towards achieving this goal.
Eleven states, the District of Columbia, and the Governor of Washington contend in their amicus brief that the individual mandate is severable from the remainder of the Act in part because some of the reforms have already gone into effect two years before the mandate becomes effective, and in part because many states have taken action in reliance upon the validity of the remainder of the Act.

In a very brief brief, the Missouri Attorney General identifies five specific provisions that have already gone into effect as illustrative of parts of the law that should be preserved even if the individual mandate is struck down: funding for maternal, infant, and early childhood care; the prevention and public health fund; funding for school-based health centers; nutritional labeling for chain restaurants; and break time for nursing mothers.

Michigan Legal Services filed one the most heartfelt briefs on severability.  Its brief contends that the individual mandate is fully severable from the remainder of the Act because the Act as a whole is intended to extend medical care to the poor, and that its remaining portions should therefore stay in effect.  The brief is dedicated to "those who have suffered under the present system – especially to the thousands who have died because they had no insurance and no access to affordable care."

Taken as a whole, these amicus briefs reinforce several points about the Affordable Care Act. The Affordable Care Act is vast in scope. Each of these different organizations representing many different segments of society finds something valuable in the Act for its particular constitutency. Many millions of people are already depending upon this law. The Act seeks to improve the delivery of medical care to every American. Its impact will be universal.

The consequences of declaring this law to be unconstitutional are greater than perhaps any law that the Supreme Court has previously reviewed.  The justices of the Supreme Court will have to think long and hard before they strike down any significant portion of this law.

Cross-posted from Akron Law Cafe and

Originally posted to conlaw on Wed Mar 14, 2012 at 04:25 AM PDT.

Also republished by ClassWarfare Newsletter: WallStreet VS Working Class Global Occupy movement and Sluts.

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Comment Preferences

  •  nice round-up (5+ / 0-)


    Never forget that the Republican War on Women originated with religion; the GOP is but theocracy's handmaiden.

    by Cedwyn on Wed Mar 14, 2012 at 04:38:09 AM PDT

  •  as i understand the severability test, (5+ / 0-)

    the question is whether the mandate was either conceptually or politically necessary to passage.  Given that, its tough to see how its severable.  Any thoughts on how the various amici framed the test itself?

    •  I was thinking the same thing. (5+ / 0-)

      It's hard to see how this would have passed without the mandate.  Conceptually, the individual mandate (requiring everyone to buy into the insurance system) made all the other mandates on insurance companies (such as no pre-existing conditions) possible economically.  Politically, without the individual mandate (and the support of the insurance community) there's an argument that this would not have passed.  The margin was razor-thin to begin with in the Senate, at least, and there are enough instances of Senators and Reps saying that the ACA was not workable without the mandate.  

      I understand that various interests groups are each trying to save their own little piece of the ACA.  But I'd be interested to see how the address that underlying premise of whether the mandate is severable at all, which has to be addressed before you get to these individual arguments as to which pieces survive.  

      Most legislation on its face, of course, includes a severability clause which means that the Court can start with the presumption that Congress intended the legislation to be severable if any piece was unconstitutional.  This one did not, and that fact may weigh against severability.  

      •  here's an interesting piece (0+ / 0-)

        1. Individual Mandate. The question specifically is whether or not Congress went too far in requiring all Americans to purchase and maintain individual health insurance. The answer lies within the Commerce Clause of the Constitution
        iirc, requirements to buy car insurance have been challenged and upheld by the courts.  i guess those are usually state level, but i could have sworn i saw something about that related to the commerce clause.
        2. Severability. Apparently, in their haste to get the PPACA through Congress, the severability clause was not included in the specific wording of the bill...if any portion of the PPACA is determined unconstitutional, in absence of a Severability Clause, the remainder of the legislation would be deemed invalid.
        so yeah...severability would be very, very bad.  but check out this timeline widget thingie.  look at everything that has already gone into effect.  people have had a taste of their kids not being denied coverage because of asthma and they ain't going back.  some people have realized that had ACA not eliminated lifetime benefit limits, they would not have survived their medical crisis.

        seniors have gotten a taste of preventive care with no out-of-pocket costs.  the doughnut hole is closing.  more early retirees are medicare-eligible because of ACA.

        those genies are NOT going back in their bottles.  no fucking way.  because the kicker is, a lot of people who were all kinds of against gubmint healthcare have had their eyes opened.  people who railed against ACA are some of the very people it has helped the most.  thankfully, many of them realize that.

        so, let 'em sever it.  good luck getting all the already-disbursed funding for community health centers, etc. back.  have fun telling seniors they're out of luck again.  and i double-dog dare the insurance companies to start kicking off 23-year olds and little kids with PECs.  no, i triple-dog dare them.

        and if they were that stupid, it would drive enrollment into the government programs -- medicaid, PEC pool (again, that horse already left the barn), SCHIP, etc. -- in droves.  not severing the mandate and tossing out the whole enchilada would truly be the death knell of private health insurance.  but so would severing it...hahaha!

        3. Anti-Injunction Act. This particular rule says that private individuals are barred from challenging the constitutionality or legality of taxes until after a tax is requiring an individual to purchase health insurance the same as Congress requiring a health insurance tax.  

        4. Medicaid.  Included in the PPACA is a significant expansion of our existing Medicaid system. The Medicaid system was designed as a state system that is largely funded by federal dollars...Congress expanded the Medicaid ranks...The question is raised whether or not they overstepped their authority.

        Never forget that the Republican War on Women originated with religion; the GOP is but theocracy's handmaiden.

        by Cedwyn on Wed Mar 14, 2012 at 11:16:44 AM PDT

        [ Parent ]

        •  Cedwyn - auto insurance has no relation to the (0+ / 0-)

          health insurance mandate for several reasons.

          States have much broader powers than the federal government and there has never been a serious constitutional challenge to state auto insurance requirements. States are not restricted by the enumerated powers listed in the US Constitution.

          The state requires you to have liability insurance in case you injure someone else or damage other people's property. This is an important point, no state requires you to have auto insurance on your car or for your injuries. If you damage your car, or injure yourself in a car accident the state doesn't care if you have no insurance.

          "let's talk about that"

          by VClib on Wed Mar 14, 2012 at 10:55:01 PM PDT

          [ Parent ]

          •  yes (0+ / 0-)

            but everyone who drives a car is required to have that insurance.  everyone utilizing health care is required to have insurance.

            i get the differences between state and fed, but haven't there been court cases upholding the mandate already?

            Never forget that the Republican War on Women originated with religion; the GOP is but theocracy's handmaiden.

            by Cedwyn on Thu Mar 15, 2012 at 05:37:45 AM PDT

            [ Parent ]

            •  Cedwyn - the case is at the SCOTUS (0+ / 0-)

              Because various trial courts, and district courts of appeal, have both declared it constitutional and unconstitutional. It only takes one district court, or court of appeal, to rule that it is unconstitutional for the law to be tossed, regardless of how many other courts have ruled that it is constitutional. However, all of those ruling have been stayed pending review by the SCOTUS. Serious Court watchers think this is a tossup, but the Court would be on solid legal ground to nix the mandate, and maybe the entire ACA.

              "let's talk about that"

              by VClib on Thu Mar 15, 2012 at 07:05:18 AM PDT

              [ Parent ]

  •  thanks so much ! (2+ / 0-)
    Recommended by:
    OleHippieChick, Cedwyn

    what a complexity you have made so clear.
    there should/could be a 'diary of note' badge... ?

    Addington's Perpwalk: TRAILHEAD of Accountability for Bush-2 Crimes.

    by greenbird on Wed Mar 14, 2012 at 05:30:14 AM PDT

  •  Thanks, and I've always wondered (1+ / 0-)
    Recommended by:

    exactly how much impact amicus briefs actually have on  Court proceedings.  I know they've been useful in the Prop 8 and DOMA cases.

    All it takes is security in your own civil rights to make you complacent.

    by Dave in Northridge on Wed Mar 14, 2012 at 07:06:45 AM PDT

  •  As most major Laws Have a Severability section (1+ / 0-)
    Recommended by:

    why didn't this get in ACA?  Was a Severability Section in any of the draft versions, and if so why was it taken out?

    The most important way to protect the environment is not to have more than one child.

    by nextstep on Wed Mar 14, 2012 at 07:37:39 AM PDT

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