Health: Constitutionality, Obamacare, and Severability

NOTE: This post inaugurates a new feature of The Thing to Know. We begin a series of regular pieces highlighting issues affecting Americans’ health, from insurance to Covid-19 to poisonous environmental conditions.

The Story:

The US Supreme Court will soon consider the continued viability of the Affordable Care Act, also known as Obamacare. The administration of Donald Trump has made no secret of the fact that it would like the program gone, either repealed by Congress or struck down by the courts, though thus far it has managed neither. The latest litigation on the subject treats it under a technical-seeming constitutional doctrine called “severability.”

Background:

One of the original animating ideas behind the creation of Obamacare in 2010 was that everyone able to pay for health insurance should be required to pay for health insurance. This was called the health care “mandate,” and it was thought necessary in order to avoid a “death spiral” in the private insurance industry that would destroy other elements of the plan. The Supreme Court upheld the constitutionality of this mandate in 2012, specifically as an exercise of the tax power.

Nonetheless, the tax penalty that served as the enforcement mechanism for the mandate was zeroed out by act of Congress in 2017.

Opponents of the whole Obamacare program are now arguing in court that (a) the 2017 Act means that the mandate can no longer be considered an exercise of the tax power, so (b) the mandate has become unconstitutional and (c) the ACA was passed as a single system, and no one provision can properly be abolished without changing the remainder to something Congress never intended, therefore (d) the unconstitutionality of the mandate in turn means that the ACA as a whole, including such popular provisions as a prohibition of insurer discrimination against actual and potential customers with preexisting conditions, must also be struck as unconstitutional.

The Thing to Know:

The doctrine of “severability,” on the other hand, says that a court making a decision about the constitutionality of legislation should work with a scalpel, not a bulldozer. The presumption should be in favor of retaining as much of a law as possible.

Most observers expect that when the Roberts court considers this case, it will apply that doctrine, and strike down what is left of the mandate while leaving intact the remainder of Obamacare, including protection for those with preexisting conditions.

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