In its second-to-last argument over the Affordable Care Act, the Supreme Court on Wednesday ponders a what-if.
Specifically, if it decides that Congress exceeded its constitutional authority in enacting the part of the law that requires most Americans to either have health insurance starting in 2014 or pay a penalty, does that invalidate the rest of the law? And if not, how much, if any, of the rest of the law should it strike down?
Scheduled Arguments
An 1867 law raises the question: Does the Supreme Court have the right to hear this case right now? (90 min.)
The court will consider the question: Does Congress have the authority to compel people to buy health insurance? (2 hours)
March 28: Severability
If the court strikes down one part of the law, such as the individual mandate, does the whole law become invalid? If not, are there other parts that are inextricably linked that would have to be struck down as well? (90 min.)
March 28: Medicaid
The court hears arguments on requiring states to expand their Medicaid programs. (1 hour)
Read More: Nina Totenberg's legal primer on the issues before the court.
The concept is called "severability." Often Congress includes severability clauses in the laws it passes — something to the effect of "if any part of this law should be declared void or unconstitutional" then "the remaining parts thereof shall be in no manner affected thereby but shall remain in full force and effect."
But in some cases, such as with the Affordable Care Act, Congress does not include severability language. In those cases, judges normally strike down only the offending parts of a law, leaving as much of the rest as possible.
That's what happened with one of the appeals courts that heard this lawsuit, in Atlanta. It struck down only the mandate, but the lower court judge actually said the entire law must be invalidated.
The Obama administration has argued a third position. It says if the mandate falls, so must two other positions that are "inextricably linked" to the requirement: Those are the provisions requiring insurance companies to sell to everyone, including those with pre-existing health conditions, and not charge higher premiums to those who are sick.
That's because the insurance industry says it will go broke if people can wait until they are sick to buy insurance.
"Eight states enacted various forms of guaranteed issue and community rating in the 1990s without covering everyone, and these reforms resulted in a rise in insurance premiums, a reduction of individual insurance enrollment and no significant decrease in the number of uninsured," said Karen Ignagni, president and CEO of the industry trade group America's Health Insurance Plans.
