SCOTUS and PPACA: Day Three

Today is the completion of oral arguments in the case of Health and Human Services vs Florida.  The fireworks of this week largely occurred yesterday with the SG seemingly dropping the ball on justifying the individual mandate in the Affordable Care Act. You can read some of my thoughts here and here, and I was quite active on Twitter about the whole thing yesterday. Today, however, I won’t be as active (school, work, etc). What will be discussed today?

Again, via WonkBlog:

Severability

What it is: A related question is whether the Supreme Court can strike down the individual mandate without striking down the entire health-care law — in legal parlance, whether the individual mandate is “severable.”

What the two sides will argue: The Department of Justice says that if the court strikes down the mandate, it should also repeal the health reform law’s guaranteed issue provision, which requires insurers to accept all customers regardless of their health-care status. The argument there is that the mandate is so integral to making insurance work – by getting the healthy people to sign up – that, without it, insurance markets could no longer accept all applicants. Opponents of the law go even further. They contend that because of how the law was written – without a clause that specifically noted that individual provisions could be severable – that the whole thing should fall with the mandate.

The Eleventh Circuit Court of Appeals came to an opposition conclusion: It overturned the mandate, but allowed the rest of the law to stand.

When it happens: Wednesday, March 28, 10 – 11:30 a.m.

Why it matters: If the Court finds the individual mandate unconstitutional, then severability will become a key issue in determining how much of the law falls with it. It could decide that just the mandate falls, leaving the insurance industry facing a disastrous future. Or it could rule that the mandated purchase of health insurance is so critical to the health reform law that if it goes down, it takes other key parts of the Affordable Care Act with it.

Medicaid Expansion

What it is: The health reform law expands Medicaid to cover everyone under 133 percent of the federal poverty line (about $14,000 for an individual) in 2014. Medicaid is run as a state-federal partnership and, right now, states are only required to cover specific demographics, groups like low-income, pregnant women and the blind or disabled.

What the two sides will argue: The states contend that this provision is too onerous: They’ll be responsible for footing part of the Medicaid expansion’s bill, and say they can’t afford the costs. The federal government, for its part, has centered its argument on the fact that states voluntarily participate in Medicaid. If they don’t like the new expansion, they could pull out of the program.

When it happens: Wednesday, March 28, 1-2 p.m.

Why it matters: Since states’ participation in Medicaid is voluntary, Supreme Court watchers widely expect the justices to find this part of the law constitutional. There is worry though, that if they were to strike down this part of the law, it could set sweeping new precedent for how state-federal partnership programs function.

Many have contended that the Medicaid argument could have far greater consequences if the court were to side with the states. For that I’ll outsource to Aaron Carroll. As to the first hearing on the issue of severability, I imagine people will be paying a lot more attention to this one after yesterday. Clearly if the punditry’s insta-analysis was to conclude that SCOTUS will strike down the individual mandate, they’ll need to get a sense of what else in the ACA would go with it. Which isn’t to say that the question of severability isn’t important – it is – but these are truly separate considerations before the court. I’ll try to post the link to transcripts and audio’s later.

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