The US Government Respondent’s brief on severability was filed yesterday, together with 3 supporting amici (ACA Lit Blog)
The US Government Respondent’s brief says that if the MCP is unconstitutional, only the guaranteed issue and community rating provisions should go. Everything else remains (ie, is severable from the unconstitutional part). The US Government also makes the argument, citing Printz, that parties need standing to try to strike down other provisions in the ACA (at 10-11, 14-25). The Court:
had “no business” addressing the alleged inseverability of additional provisions that did not “burden” the parties before the Court…
An interesting argument at the intersection of standing and severability. The US them make a concession that surprised me, volunteering the Medicaid expansion as the only other potentially unseverable issue with standing:
Applying these principles and certain statutory preclusions of review, if the Court accepts the individual petitionersí’ claim that the minimum coverage provision is unconstitutional, only the severability of the expansion of eligibility for Medicaid could properly be decided by the Court because the States are subject to that provision. The Court, however, would not be required to resolve that issue here. (at 11)
The Blue States brief makes several interesting arguments, showing how states are already implementing the ACA and how many individuals are counting on provisions that are either already effective or will soon be. They call for all of the ACA to stand if the MCP is struck down.
The AARP brief wants all of the Medicare changes to remain, protecting their members.
The American Academy of Actuaries brief agrees that if MCP goes, so should community rating and guaranteed issue.
The briefs don’t explore severability if the Medicaid expansion is struck down, but the US brief argues the converse, that the Medicaid expansions should remain if the MCP is found unconstitutional (at 34).