Maybe the Affordable Care Act Can Live Without the Individual Mandate

The Arguments for Severability

Here are four of the arguments groups made for letting the ACA survive the death of the individual mandate.

1. Letting the death of the mandate kill the whole ACA would give the court too much ability to interpret and shape law.

Montana and Ohio say the court has the ability to strike down an unconstitutional provision but should not then try to interpret what the drafters intended, or put much effort into seeing how the rest of the law will work.

"Courts engage in quintessentially legislative work when they effectively repeal an entire law by deciding to 'strike it down' based on its partial unconstitutionality," Montana and Ohio say.

2. Congress zeroed out the mandate penalty amount without actually repealing the mandate.

In practice, members of Congress now make many changes in federal law by increasing or eliminating funding associated with existing statutes. That's because Democrats and Republicans have trouble working together to pass bills, and because Senate rules let supporters of spending legislation pass spending legislation with just 51 votes.

To get an ordinary bill to the Senate floor, supporters normally need 60 votes, to ward off a filibuster, or endless round of stalling by opponents.

Public Citizen contends, however, that, on paper, Congress has shown its intent to sever the individual mandate from the rest of the ACA by zeroing out the penalty in the Tax Cuts and Jobs Act, and leaving the rest of the law intact.

"The TCJA added no other legal consequences for failing to obtain overage, and it otherwise left the ACA intact," Public Citizen says. "The TCJA effectively decoupled the rest of the ACAs provisions from an individual coverage mandate."

3. The mandate is still actually a revenue provision.

Jeremy Doerre, a North Carolina lawyer, notes that the Internal Revenue Service is still collecting "individual shared responsibility" payments owed for the period before the penalty was zeroed out.

"Section 5000A as amended is also currently still applicable to produce revenue from delinquent taxpayers," Doerre writes.

"The negligible nature of this revenue does not undermine classification as a valid exercise of the taxing power," Doerre writes.

4. Many parts of the ACA have nothing to do with the individual mandate.

The Patient-Centered Outcomes Research Institute notes in a brief that it was created to evaluate the effectiveness of medical treatment, and that, in 2019, Republicans worked with Democrat to reauthorize its funding.

"If this court reaches the question of severability, it should find that the provisions of the ACA authorizing PCORI can be severed from any unconstitutional provisions of the act," PCORI writes. " If the individual mandateand all related provisions of the ACA were invalidated, the provisions authorizing PCORI would remain 'fully operative' as law….They are entirely unrelated to any other provisions of the ACA; they operate independently. Indeed, they include a sunset provision that required Congress to reauthorize PCORI after ten years, and Congress did so in 2019 in the omnibus budget law for 2020, in provisions wholly independent of any provision of the ACA."

A coalition of groups representing people with disabilities have written to say that the ACA has many provisions that help people with disabilities and have nothing to do with the individual mandae.

— Read 3 Possible Effects of the New Supreme Court ACA Ruling, for Agents, on ThinkAdvisor.

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