The severability of the Patient Protection and Affordable Care Act (PPACA) from the individual mandate has taken center stage after oral arguments concluded Wednesday in a three-day historic session before the Supreme Court.
Many feel that the constitutionality of the individual mandate is threatened based on questions from Justices Antonin Scalia and Anthony Kennedy and now all eyes have shifted to the severability question. The broccoli question became shorthand for the mandate in healthcare debates since the challenge arose to the PPACA and although U.S. Solicitor General Donald Verrilli argued to Scalia that broccoli was not health care, it may not matter if the mandate is struck down and severability becomes the key question the Court will struggle with before its June decision.
"Many people who follow the Court had predicted that this argument could be a largely hypothetical (and therefore boring) one if it seemed clear yesterday that the Court would uphold the mandate. But with the prospect that the mandate will be struck down very real, everyone was now watching this severability argument carefully. And it was far from boring," wrote Amy Howe, a legal scholar and partner at Goldstein & Russell, P.C., a Supreme Court litigation boutique. Howe wrote her assessment for the highly-regarded Scotusblog.com this week.
"It did not seem like five Justices of the Court wanted to throw out the whole ACA (although Justice Scalia certainly seemed to support that result), nor did it seem like the Court will agree …that the rest of the Act can survive even if the mandate falls," Howe noted in her entry, Is half a loaf better than no loaf?
That half loaf, if the government has its way ONLY if and when the individual mandate for minimum coverage is struck down, would also include the tentacles of the mandatory coverage provision and the community rating provision. Scholars agreed there was support for this from the justices.
"The question before the Court, then, would be what else would go with the mandate? Will it limit itself to striking down the mandate and the two closely related provisions alone, or would it also conclude that other provisions with some relationship to the mandate must also go?"
Scotusblog's Kevin Russell, also a partner at Goldstein & Russell and a former clerk of Justice Stephen Breyer, was one of many noting Scalia's apparent antagonism toward the entire handiwork of the act.
Justices "seemed to find all the available options unappetizing in various respects, with the exception of Justice Scalia who I understood as pretty firmly convinced that the Court should avoid the complexity troubling the others by striking down the entire statute," Russell stated.
