The severability clause is a key issue in the Obamacare case. California versus Texas. The red states and the DOJ argue the law became unconstitutional after Congress imposed the penalty for not having health insurance in its 2017 tax cut package – but left the individual mandate itself on the books. Since the Supreme Court had previously ruled that the penalty made the cover mandate constitutional, Obamacare’s challengers claim that the mandate alone, even one now toothless, is problematic. And if the mandate falls, the rest of the law must fall too, they say.
Health law advocates and even some critics consider the argument to be false. Even if the mandate is now unconstitutional, it can be neatly removed from law without affecting insurance coverage and its many other provisions, such as Medicaid’s expansion to millions of low-income adults, lower drug costs for seniors, and health care reforms will be delivered. Congress’s decision to just remove the mandate sentence after the GOP’s broader repeal efforts against Obamacare collapsed is evidence that lawmakers believed Obamacare could survive without punishing people who forego reporting.
“The 2017 tax law amendment – that this made the entire law unconstitutional – is a really long journey, constitutional and logical,” said California Attorney General Xavier Becerra, who heads Obamacare’s legal defense.
Health insurers, who now largely benefit from Obamacare, say the elimination of the mandate penalty did not violate the law’s insurance markets or undermine insurance coverage. Even as the Trump administration urges the court to overthrow Obamacare, it is bragging about how well the law’s insurance markets are doing on its watch.
“Individual markets have remained stable and, in fact, more plans have entered certain markets and premiums have fallen,” said Pratik Shah, advisor to the US Health Insurance Scheme of the Major Insurance Trade Association.
Although the lawsuit against Obamacare was considered a longshot when it was launched nearly three years ago, Republican-appointed judges have been considered Who checked the case? A federal judge in Texas ruled that the entire law should be thrown out, and a split appeals court ruled that the single mandate was unconstitutional without saying whether other parts of the law should fall. Critical legal experts attributed these decisions to the partisan tendencies of the judges rather than to solid legal theory.
Conservative judges Samuel Alito and Clarence Thomas ruled against Obamacare in the previous two major challenges and are expected to do so again. Thomas and Trump’s first appointee, Neil Gorsuch, expressed dissatisfaction with the court’s use of severability to essentially handle the laws passed by Congress
Trump’s second commissioner, Judge Brett Kavanaugh, is seen as a likely swing vote in this case. A decision he penned this summer on the doctrine of separability was viewed by court observers as an indication of how he might rule on the Health Act.
Few expect the Chief Justice, having issued two previous opinions affirming Obamacare, to now reject the law. However, the law’s challengers see a possible opening. They point out that in a 2015 case of Obamacare subsidies, Roberts’ view explicitly linked the individual mandate penalty to the law’s other “interlocking reforms”, including protection from pre-existing conditions. At the time, the Obama-era Justice Department also argued that the mandate was essential for the market’s insurance coverage to work.
“At least you can’t separate the individual mandate from that [insurance protections]”As the Supreme Court said, are intertwined,” said Robert Henneke, general counsel at the Texas Public Policy Foundation, a conservative think tank that helped bring the lawsuit. In his view, the Supreme Court should at least overturn these safeguards, including provisions prohibiting insurers from denying coverage to people or making them more burdensome because of illness.
This is a scenario of concern on Capitol Hill and for the healthcare industry as Republicans and Democrats are unable to come together on even small changes to Obamacare.
“We fundamentally disagree on how the problem can be solved,” said a senior advisor to the GOP Congress. “I think we all agree that we should protect people with pre-existing conditions through some form of mandate, but we fundamentally disagree on how to do that.”