CQ WEEKLY – COVER STORY
March 17, 2012 – 11:46 a.m.
If the Individual Mandate Goes, What’s Left?
By Gail Sullivan, CQ Staff
If the Supreme Court declares the health care law’s individual mandate unconstitutional, it must decide whether the rest of the law can go into effect.
The law’s challengers would toss the whole thing out the window. But the government would scrap just two provisions to which it claims the mandate is “essential.”
Since neither side thinks the law should take full effect without the mandate, a Supreme Court-appointed attorney, H. Bartow Farr III, will argue that position.
The decision on severability, should there be one, is likely to have political ramifications. If the court strikes the mandate but leaves everything else intact, Democrats can at least claim a partial victory.
If the justices cut out all or most of the law, opponents will have bragging rights as the November election approaches —confirmation that the Democrats abused their power.
That fits nicely with the portrait being sold by Republican presidential contenders of a White House and Democratic Party that disregard the Constitution.
Lawmakers sometimes include a severability clause in legislation to make it clear that if part of the law is found unconstitutional, they want the rest of it to go into effect.
Nobody seems to know why this clause was left out of the health care law — maybe it was an oversight or maybe it was intentional — but, either way, it doesn’t matter much to the Supreme Court.
The court approaches situations such as this like an optimistic surgeon, cutting out the diseased parts in hopes of saving the patient. This “presumption of severability”can be overcome when the remains of the law appear unable to function as Congress intended.
In any case, congressional intent may be relevant to figuring out whether Congress intended certain provisions to go into effect without the mandate, the likeliest candidates being the guaranteed-issue requirement and pre-existing condition exclusion, which prevent insurance companies from denying affordable coverage to sicker people.
The government argues that those provisions should be thrown out with the mandate if it is struck down to avoid “an adverse selection cascade,” in which “healthy individuals would defer obtaining insurance until they needed health care, leaving an insurance pool skewed toward the unhealthy. Premiums would increase significantly under that scenario, and the availability of insurance would decline — exactly the opposite of what Congress intended.”
The 11th U.S. Circuit Court of Appeals, which struck down the mandate, found this unpersuasive. It upheld the rest of the law, finding that “the lion’s share of the Act has nothing to do with private insurance, much less the mandate.”
The challengers counter that everything must go, because the act was “a grand bargain with nearly every provision crucial to its success.”
If the Individual Mandate Goes, What’s Left?
“The ultimate question is whether Congress would have enacted the statute without the invalidated provision,” says the brief for Florida and other states that have attacked the law. “Here, the answer is clear. Congress considered the individual mandate essential to the Act’s functioning, to its passage, and to its ability to achieve Congress’ goal of near-universal health insurance. This Court cannot remove the hub of the individual mandate while leaving the spokes in place without violating Congress’ evident intent.”