On Wednesday morning, the third day of oral arguments involving the constitutional challenges to the Affordable Care Act, the Supreme Court explored this question: If we find that the “individual mandate” is unconstitutional, does the absence of a severability clause mean that the whole law is unconstitutional?

The coalition of states argued that the failure of Congress to include a severability clause in the law means that, if one clause is stricken, all must be stricken. As such, if the individual mandate, described as the “heart of the law” is found to be unconstitutional, then they must strike the entire ACA.  A well-worded “severability clause” in the law would have definitely preserved the rest of the law if another part were found to be unconstitutional.  Nevertheless, the absence of such a clause does not mean that the Court is automatically obligated to strike the whole law just because one provision is found to be unconstitutional.  The government attorneys argued as much and pleaded with the Court to practice restraint. They argued that, if one part was unconstitutional, then the rest of the law could be left to stand alone. So, oral argument was heard on Wednesday morning regarding this question. Court observers noted that ultra-conservative judges seemed to favor striking the law in its entirety if the individual mandate, called the heart of the law, was found unconstitutional.

An afternoon session was held to ascertain whether the health law’s expansion of the Medicaid program for the working poor compels the participation of states to such a degree as to amount to coercion. The ACA requires those states that are participating in the Medicaid program to increase the amount of income one may earn to 133% of the national poverty level (which is about $23,000 for a family of four) when deciding upon eligibility.

The states contend that they need help with care of their poor residents and they must take federal funding. However, they allege it violates their sovereignty and it is unduly burdensome to increase the amount of people on Medicaid.  Basically, the states argued that the offer of federal monies for Medicaid, which is co-sponsored by the states at varying percentages, is too good to pass up.  As such, they continue, it amount s to a coercive, and therefore, unconstitutional mandate.  However, the “offer you cannot refuse” argument seemed to lack acceptance from the judges. The administration argued that Congress has always been permitted to put conditions upon money awarded to states. Further, they contended, there is no coercion in making the deal so sweet that the states definitely want to take advantage of it. No program in which Congress has attached a condition to release federal dollars has ever been found to be “coercive.” A previous federal program that awarded money for highway construction to states that rose the drinking age to 21 years has been upheld by the Court. This issue seems to be a win for the administration but there are skeptics among pundits.

Lastly, much attention has been given to Justice Anthony Kennedy’s reactions and questions because he is considered a swing vote for the individual mandate issue and the possible death of the whole law if the mandate is found unconstitutional. Kennedy is a Catholic.

Although Solicitor General Donald B. Verrilli was uniformly said to have given a far better performance on this last day than the second day, the ACA is not on certain ground. Verrilli’s closing argument conceded that there was indeed an argument to be made for liberty. He argued that access to healthcare and the freedom from feeling the crushing weight of illness are also forms of liberty which need to be protected.

NETWORK continues to offer its full and prayerful support for the Affordable Care Act of 2010.

Original Post From March 28:

The Supreme Court convened on Monday, March 26, 2012, to hear arguments concerning the constitutionality of two provisions in the much-debated, highly partisan Affordable Care Act. The Court has agreed to hear arguments on four separate issues:

• Is the case too premature to be brought before a court?
• Does Congress have the power to mandate that an individual purchase health insurance?
• Does the expansion of Medicaid unduly burden the states?
• Must the entire law be declared null if one part is found to be unconstitutional?

On Monday, March 26, the Justices heard arguments to determine whether an antiquated tax law would bar the case from even being litigated at present. It was not an issue that was appealed by either the coalition of states or the federal government and it does not have anything to do with the actual law under review. On the contrary, the High Court, of its own accord, requested Robert A. Long, a private attorney, to present the argument that the Anti-Injunction Act bars litigation of this lawsuit because the Act states that one must pay the tax before one can complain about it. Since the penalties will not be due until April of 2015, the argument continues, this case is too premature to be heard. Both parties to the case want the case to be heard and opposed Mr. Long. At the end of the day, most Court observers believed that the Justices will choose to decide the constitutional question of whether Congress exceeded its powers despite arguments that the challenge was brought too soon.

Arguments concerning the constitutionality of issues within the Affordable Care Act were slated for Tuesday and Wednesday.

On Tuesday, the Justices heard arguments related to the constitutionality of the mandate that all persons must purchase insurance by August 2014. Failure to purchase insurance would result in the levy of monetary fines that would be due with one’s income taxes by April 15, 2015. Specifically, the Court must answer the question, “Does Congress have the power, under the powers of commerce regulation, to mandate individuals to purchase insurance?”

The 26 plaintiff states, led by Florida, and one business, argued that mandated insurance is an overreach of governmental powers. They maintain that individuals should not be forced to buy insurance because it is a “product that they may not want or need.” Paul Clement, lead attorney for the individual states’ case, reasoned that many things are good for one’s health but individuals should not be forced to purchase them.  Clement also contended that it was a violation of privacy and a slippery slope to mandate what products a citizen must purchase. Solicitor General Verilli, arguing for the government, stated that the law merely regulates a commerce that already exists and is universally used. Unlike a refusal to purchase broccoli, those who do not purchase insurance will, nevertheless, eventually utilize healthcare systems. Delayed diagnoses and treatment result in higher costs for emergency and complicated care that may have been avoided with preventive or early treatment.

Court observers gave mixed opinions regarding possible rulings individual Justices may make, citing strenuous questioning of the Solicitor General by the Justices.

On Wednesday, the two hearings scheduled will address whether the entire ACA must be voided if the individual mandate is found unconstitutional and whether the expansion of Medicaid coverage to those living at 133% of poverty level unduly burdens the states*.

The Court must publish its rulings by June 30, 2012.

NETWORK continues to offer its full support of the Affordable Care Act.

*NETWORK took a leadership role in organizing the distribution and signing of an amicus brief concerning Medicaid expansion, which was filed in the U.S. Supreme Court.