• Severability is like an old sweater: ACA SCOTUS briefs

    Did you ever pull some yarn on an old sweater and end up making it worse? Before long, you could unravel the entire sweater if you kept at it.

    That is the legal strategy of Florida and the other states challenging the ACA, according to their “severability” brief filed with SCOTUS. If the Court finds one section of the ACA unconstitutional, the Justices must then decide whether the rest of the law survives (or is “severable”).

    Florida’s starting point is the minimum coverage provision (aka the individual mandate) – and from there they start pulling the yarn. First to fall – according to Florida’s brief – will be the guaranteed issue and community rating rules, mainly because the insurance industry wouldn’t have accepted these bitter pills without the sweetener of 32 million more customers. The insurance industry makes the same argument in its briefs. The 11th Circuit agreed, but stopped here.

    Once these three provisions are gone, Florida’s brief sees no way to keep any of the private insurance reforms in the ACA:

    Simply put, without guaranteed issue and community rating, the impetus for the ACA would disappear, and the Act’s whole private insurance expansion would unravel, for insurance companies would remain free to turn away millions of the very same individuals to whom the Act promised insurance. (at 48)

    As these “core components” fall, so does every last bit of the Act:

    The ACA is a delicate balance of inextricably intertwined provisions, none of which can survive without the Act’s core components. (at 35)

    Even the clearly constitutional revenue-raising provisions should fall if the Medicaid expansions are struck down. Why? Because Congress only wanted the money to pay for Medicaid expansion:

    The massive expansion of Medicaid was a costly endeavor that Congress attempted to counterbalance with projected cost savings.  If the Medicaid expansion is invalidated directly or falls as a consequence of invalidation of the individual mandate, then these offsetting provisions cannot survive while respecting Congress’ intent. (at 26)

    The upshot (according to Florida) is if any word in the ACA is unconstitutional, all of it must burn:

    …calling into serious question whether Congress would have passed health insurance legislation at all if even a single word of the ACA was altered… (at 39)

    Meanwhile, in unrelated news, Republicans in Congress are drafting legislation just in case the Supreme Court strikes down the ACA.

    KO

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