Can ObamaCare's Mandate Be Severed from the Rest of the Law?


The Supreme Court will hear arguments on two questions about ObamaCare today. Reason's Nick Gillespie already outlined the basic case against the law's Medicaid expansion here. (Read my take on the states' case against the Medicaid expansion here.) 

The court will also hear arguments on the question of the law's severability. Because the law was passed without a severability clause, which would have ensured that remaining parts of the law would stand should any part be overturned, the court will have to decide how much of the law to strike and how much to let stand should it rule that the mandate (or any other provision) fails to pass constitutional muster. There are three plausible outcomes:

  1. The whole law goes down. This is the position being argued by the 26 states challenging the law. It's also the position that Judge Roger Vinson took when he struck down the entire law in a lower court last year. One thing to note about Vinson's ruling is that although he scrapped the entire thing, he did not actually rule in favor of the states on the Medicaid expansion. He simply said that the mandate was unconstitutional, and that the whole law was woven too tightly to try to remove just one provision. 
  2. The mandate goes down, as do the law's major insurance regulations. This is the position being argued by the administration, which says that the rules banning insurer discrimination against indidivuals with preexisting conditions cannot stand without a mandate. The administration points to market meltdowns in the states to make its point. 
  3. The mandate goes down, but the entire rest of the law stands. This is the position taken by the 11th Circuit Court of Appeals in Atlanta, which heard the case following Judge Vinson; it will be argued by an outside lawyer. 

The administration is correct that the insurance regulations are deeply connected to the mandate. But so is the rest of the law. And that's why the whole thing should go.

In deciding what parts of the law to sever in the absence of a severability clause, the court is in a somewhat dicey position as it has to determine what Congress would have done had the unconstitutional provisions not been available as options. It is of course impossible to know the counterfactual. But it's relatively easy to make a case that the mandate—the provision most likely to be judged unconstitutional—ties the entire law together; after all, the Obama administration has repeatedly argued that the mandate is essential to the law. Nor is it the provision merely essential to the law's functionality; it can also be argued that the provision may have been essential to the law's passage. As Cato's Ilya Shapiro told me back in 2010, "It could be that nothing would've passed without the individual mandate—because the bill was a whole bunch of logrolling, finely balanced compromises, etc.—in which case even more falls than just the provisions directly related (including the Medicaid expansion)." If the mandate—or any part of the law—is held to be unconstitutional, then the rest of the law should be thrown out too. 

From the archives: If ObamaCare's mandate is struck down, then what?

Update: Striking down the entire law was always going to be a long shot, even more so than simply striking the mandate. And it looks like several justices on the court are less than interested in taking the entire law down. Via the AP:

Several Supreme Court justices seemed receptive Wednesday to the idea that portions of President Barack Obama's health care law can survive even if the court declares the centerpiece unconstitutional.

On the third and last day of arguments, the justices seemed skeptical of the position taken by Paul Clement, a lawyer for 26 states seeking to have the Patient Protection and Affordable Care Act tossed out in its entirety.

In their questions, Sonia Sotomayor, Elena Kagan and Ruth Bader Ginsburg—and even conservative Chief Justice John Roberts and Justice Antonin Scalia—seemed open to the idea that the wide-ranging law contains provisions that can be saved—even if the mandate for Americans to have health insurance is struck down.

Update 2: The severability argument is now complete. Other reports from observers in the court room suggest it's tougher to predict how the Court might rule. The New Republic's Jon Cohn tweets: "Tough questions to both sides, still hard to predict final verdict, but not out of question SCOTUS throws out entire law." The Examiner's Philip Klein agrees: "Very hard to call where they'll end up," he writes, noting also that "Kennedy argued it may be more extreme to pick & choose parts of law to overturn than to just strike down the whole thing."


NEXT: The Ryan/GOP Budget Plans: Dessert First, Spinach Later, Defense Always

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  1. The mandate goes goes down, as do the law’s major insurance regulations. This is the position being argued by the administration,

    This also is, unsurprisingly, the position argued by the briefs for the insurance industry.

    which says that the rules banning insurer discrimination against indidivuals with preexisting conditions cannot stand without a mandate. The administration points to market meltdowns in the states to make its point.

    I will admit that it’s nice to see them admit that the NY/NJ insurance markets are screwed up because of guaranteed issue and community rating.

  2. So the possibilities are anything between the who law gets thrown out and Maobama does whatever he wants.

    1. That clears things up!

  3. No, the modern Constitution clearly says the federal government can do anything necessary and proper to promote the general welfare. I will be shocked if the SCOTUS were to rely
    on a constitution written by a bunch of dead old fogies who never heard of
    Wii, twitter, twinkies, bacteria, or keeping kids off their lawns.

    1. I will be shocked if the SCOTUS were to rely
      on a constitution

      Me too. But hey, they’ve got a decent record so far this session.

  4. dunno peter – lets axe heritage & teh gop what their plan was when they were for it!

    1. That’s all water under the bridge now. Just because the GOP were at one time just as idiotic concerning healthcare as the Democrats, doesn’t mean they always have to be. This is one flip-flop I support whole-heartedly.

      1. at one time? like from hillarycare to 08? that one time?

        1. Even if that were true (and it’s not, since it describes a handful of politicians and one think tank, bitterly opposed by others), still a much shorter time than Democrats were for slavery and Jim Crow.

    2. You’re suggesting that Heritage isn’t devious enough to suggest a plan that they hoped would get struck down by the Supreme Court?

      I’m touched by your faith in the righteousness of the GOP.

  5. The severability clause was consciously removed from the law to get it to pass. It would be the height of judicial activism to disregard the obvious intent of congress.

    1. And your point is?

      1. Hoist by their own petard!

        1. Was he one of those Star Trek Enterprise Admirals?

      2. That if one jot is unconstitutional, the whole thing goes down with it.

        1. That’s what should happen.
          What will happen is that the justices will torture logic so badly to keep most of the law that Amnesty International and the International Tribunal will have to be involved.

    2. Yes, I think that it was consciously removed, because an explicit severability clause would split the already slim majority voting in favor of it.

    3. Yeah, but it would be ind of fun to see how Congress reacted if only the mandate were invalidated. How long would they play chicken as insurance became unaffordable?

  6. What could be better than letting horribly flawed legislation resulting from little more than political pandering stand? Letting parts of it stand so they can ad hoc the thing to death in the future.

    I for one look forward to the chaos!

    1. Yep! Let’s create a climate of even greater uncertainty. And let’s see how well the economy recovers. Hint – businesses hate, hate, hate regulatory uncertainty and tend not to hire during these times.

  7. With the mandate gone and the rest of the legislation standing, private insurance companies go under.

    1. No way does that happen. If the mandate goes down, the Dems break and repeal the regulations. The insurance companies own too many Congress Critters for that not to happen.

      1. But they also know it’s a sure pathway to their Nirvana: Government run healthcare.

        1. That means putting the insurance companies out of business. If that was going to happen, it would have happened when the Dems had 60 votes.

          So that is not an option.

        2. Or people will pay for health cost out of pocket. NAH.

    2. I’m hoping that if the mandate goes down, Suderman’s option 3 is not even considered an option by the SC. Option 1 would be best, of course.

    3. If the Court were really worth much, it would use this opportunity to restore the concept of limited government. “Sorry, that experiment of letting the government do anything it wanted? Failure. Commerce Clause restored!”

      If the Court were really worth much.

      1. Wishful thinking.

        Although, reading the transcript, Kennedy sounds like he might be all for that.

        Ginsburg doesn’t even know what the fuck she’s talking about anymore. “I thought Wickard made you buy grain!”

        1. And Thomas has mentioned it a few times – most recent being Raich v. Gonzalez, I believe.

          Wanna talk about moronic comments? Read some of Kagan and Sotomayor’s comments from yesterday. Ugh.

    1. Sounds like a bunch of so-called Humanitarians need to pony up to save her, instead of lobbying the most violent, gargantuan, blood-soaked,and corrupt leviathan currently in existence to resolve the situation (I’m sure it will involve accidentally setting her on fire and then shooting her while she’s screaming). Methinks these progressives will hold on to their depreciating greenbacks to buy new pairs of unneeded shoes and signed copies of Fahrenheit 9/11 as they claim charity never works. Asshats.

      1. The only way to save her is through government compulsion!

        1. Send in the Murder-drones.

      2. I mean, here’s my thing – I’m ok with the government providing assistance and/or facilitating charitable contributions for people with rare conditions that cause them to exceed a certain extreme lifetime maximum (say, $5 million) and lose coverage. Such cases should be tied to permitting access to medical researchers, who can attempt to find a cure or a more affordable treatment. We’re talking a handful of people per million max, and not the dude who had twenty heart attacks because he eats 15 Bacon Triple Whoppers a day.

        1. Obamacare supporters really, truely, deeply, honestly, passionatly believe that they only two possibilities is that everyone has every drug and treatment provided to them by the kind, benevolent Uncle Sam, or people will die in the streets.

          There is no middle ground. Puppies and unicorns, or packs of feral children and dead poor and elderly stacked like cordwood.

        2. As uncompromising as I would like to be, this fictional scenario would be infinitely preferable to what is being/what always has been rammed up our asses. Taking care of the .001% of the population that can’t take of themselves is not what is bankrupting this kleptocracy. Taking care of 50-100% of the people who would have (should have?) been able to care for themselves sans government theft (via inflation and taxes) plus bankrolling (propping up?) endless seas of favored corporations is what is bankrupting this kleptocracy. That and pointless war. War gets paid for one way or another. Call it the conservation of insanity and vengeance, if you will.

    2. FTA:

      “I was so happy,” Walters remembers. “I yelled for Matt. I said, ‘Do you know what this means? Do you know what this means?'”

      Yeah, it means you get to force someone else to pay for it.

  8. Here is my best guess. Usually there are only 2 opinions in an opinion: the majaority (winning) opinion and the descent. I am betting that this case will have no less than 7 opinions. I think there will be a lot of concurring in part and dissenting in part. What ever “The Opinion” is will be the weakest and vaugest of the bunch. Whatever happens, no one will really know where any sort of boundrys are, which is a win for the State.

    1. dissent

      And no, there *might* be 3.

  9. It’s pretty clear if the general health insurance mandate goes down, the preexisting conditions coverage mandate has to go down, or we’ll be in a terrible mess. The justices just have to say, it’s all too tangled, toss out the entire law, try again Congress. And Congress will never be able to cobble together another mess like this again.


    1. The justices just have to say, it’s all too tangled, toss out the entire law, try again Congress.

      Kennedy basically said this yesterday. It was something like “Congress clearly has the power to tax and spend; why did you guys create this bullshit?”

    2. And Congress will never be able to cobble together another mess like this again.


      1. Hey, seriously, even with big majorities in both chambers, and a shitload of procedural tricks, they barely passed ObamaCare this time.

        1. You’re far too optimistic.

          Never doubt a politician’s ability to create something fucking retarded.

  10. Hopefully, severing the law will allow a fig leaf to the “judicial restraint” crowd and give them cover to vote against the mandate/Medicaid.

    If it creates an unholy mess and fucks the living shit out of various kleptocorpocrats whose special deals get wrecked, all the better.

    The more traumatic this is, the less likely that Congress will do something with healthcare again in the near future. And that’s a good thing, since Congress is and will be incapable of doing anything constructive with healthcare.

  11. If the whole thing is overturned, that means I can use HSA bucks on OTC drugs again, right?

    1. God no. You HDHP/HSA people need to be forced to go to the doctor as much as you would with a $20 copay.

      1. Doesnt the data show that people with HSAs visit the doctor MORE often?

        1. I’d be very surprised if HDHP/HSA users visit the doctor more than those with a $20 copay. Do you have a cite?

          1. A study by UnitedHealthcare shows that 5 percent more HSA members sought preventive care than a peer group of traditional PPO members. The study found that members with an HSA receive preventive and evidence-based care at rates equivalent to, or higher than, members in non-HSA plans. It also showed that HSA members were 16 percent more likely to get cervical or prostate cancer screenings.

            More preventative care, not necessarily more doctor visits.

            1. A lot of high-deductible (HSA-eligible) plans include 100% coverage with no deductible for preventative care, including annual physicals. Mine does.

              1. Same with mine. So it would make sense for people in those plans to take advantage of the $0 cost which could also reduce out-of-pocket expenses down the road, while not going to the doctor for every sniffle and hangnail.

                1. Ditto with mine. I believe the PPO plans offered by the same company does the same thing, however.

                  1. I guess the PPO people pass up on the free stuff because its only going to cost them $20 down the road anyway.

        2. I certainly don’t. Those HSA bucks are my propertah, damnit, and the only thing doctors do is tell you to sleep and drink lots of water. I honestly have no idea why these assholes make six figures.

          1. I honestly have no idea why these assholes make six figures.

            Drug dealing pays, duh.

  12. The Examiner‘s Philip Klein agrees: “Very hard to call where they’ll end up,” noting also that “Kennedy argued it may be more extreme to pick & choose parts of law to overturn than to just strike down the whole thing.”

    You want to talk about legislating from the bench? Deciding which parts to keep and which to toss would be antithetical to the judicial restraint concept.

    1. Also, remember that these are a bunch of elderly judges, each with a half-dozen clerks, who have a pretty sweet job. They work 30 hours a week and can never be fired. A little light writing (done by the clerks) and doze through some arguements and then it’s back to internet porn addiction. I’m sure they don’t want to do the actual hard work of parsing through some piece of shit legislation, slapped together by the drunks and crack whores in Congress.

      It’s thumbs up – or thumbs down. [which they should do publicly on the front steps of the Supreme Court building for every decision]

      1. Wearing little laurel wreaths, of course.

      2. If it’s thumbs down, does that mean the author of the legislation is killed?

        1. As the esteemed Frank Herbert put it:

          No legal system can maintain justice unless every participant–magisters, prosecutors, Legums, defendants, witnesses, all–risks life itself in whatever dispute comes before the bar. Everything must be risked in the Court-arenas. If any element remains outside the contest and without personal risk, justice inevitably fails.
          –Gowachin Law

  13. I have to agree that tinkering with various portions of the law is far more in the realm of judicially active than any other option. If the opinion is “The bill is unconstitutional, and here’s why” that gives the lege another crack at writing a constitutionally valid law, rather the judiciary doing so by fiat.

  14. I really want Maobamacare to be defeated when the ruling is handed down; however, a part of me wonders, what is the administration planning?

    If it goes down, what’s the game plan? “Well, we tried.” The attack line is obviously how “out of touch” Obama is with “main street Amurka,” etc. What’s the real defense angle here?

    Of course, if the case squeaks by, we’re fucked anyways, so the fallout is pretty irrelevant.

    1. They don’t have a plan. Everyone attributes intelligence and planning to this administration. Occam’s razor. They don’t have any idea what they are doing. They go from day to day.

      1. I don’t buy that; this is a central tenet to his re-election campaign. And there’s *nothing* Obama wants more than to get re-elected.

        1. Sure he wants to get re-elected. But you are assuming that he is smart enough and his administration is organized enough to have a coherent long term strategy for doing that.

          I don’t see that. I see them groping in the dark reacting from one news cycle to the next.

        2. I think he would rather play in the NBA than get re-elected. But he doesnt have the skill for it.

        3. Think “media spin”. How did they get this piece of shit through in the first place?

          If shit happens and nobody reports on it in the MSM, did it really happen? People can talk the MSM down but it’s still the MSM. Because that’s still where most people get most of their news.

          Sad truth is that what the SC does in the end will probably depend significantly on opinion polls.

          Whatever the outcome, the media will find a way to make Maobama the good guy. The only possible counter to that would be a strongly principled opponent for POTUS next fall. And we all know how that’s coming along.

          I just don’t see Maobama having a big problem with re-election either way.

          1. Message to Ron Paul movement: if you want to matter in the long run, you better set your sights on taking over media and education.

            That’s where action is. That’s how we ended up in our current asinine position where a liberal minority is running a big piece of the overall show.

            1. Education is going to be tough. It won’t be easy to get union teachers to explain to children how the union is fucking them over.

              1. You’re right.

                So, we need a whole new union. The Union of Paul. A union of equal opportunity in the libertarian sense.

                Okay I’m just dreaming.

              2. Homeschool.

    2. Here’s what I think:

      Plan A was that OCare became less of an anchor, and he could run on it as an accomplishment.

      That didn’t happen. So, they think they’re better off without it, and are willing to lay down on the defense.

      Plan B is to run against Washington – the do-nothing Congress, and the activist SCOTUS, both in the pocket of the Kochs and the evil corporations, with Obama cast as the good guy who is On Your Side.

      1. You give them too much credit RC. First, no SG wants to be known as the guy who lost the case of the century. No way did he lay down on this case.

        Second, they really believed the plan would work and be popular. And they never dreamed that the Court would strike it down. Now that it is both unpopular and stands a chance of being thrown out by the Court, they are going to spin it as best they can.

        There never was a plan B because they didn’t have much of a plan A. They are just reacting to whatever happens.

        1. First, no SG wants to be known as the guy who lost the case of the century. No way did he lay down on this case.

          Then Verrilli is just amazingly incompetent. He got his ass handed to him on plate with parsley and some sides yesterday.

          1. He is. You have to remember, these people live in a bubble. They are incredibly arrogant. That is not conducive to being able to defend your positions when challenged.

            1. That is not conducive to being able to defend your positions when challenged.

              Oh, come on. The guy is a high-powered attorney. I think he knows how to argue.

              Sure, he did a bad job yesterday, at least in part because he’s arguing a bad case. But I really don’t think it’s because he’s “incredibly arrogant.”

          2. I have to say, I think I came up with better arguments than the Big Brains at the SG’s office in an evening consultation with a fine cigar and some single malt.

            Incompetent? Taking orders to lay down? I think those are the only two options.

      2. Plan B is to run against Washington – the do-nothing Congress, and the activist SCOTUS,

        At what point do you stop for a second and say to yourself “You know, I might be wrong.”

  15. Kennedy worries me a little bit on this issue.

    If he’s not willing to sever, I think its much less likely that he will vote to overturn. His thought process might well be:

    “Its a close call, but I’m not crazy about the mandate. But severing would be real judicial activisim. So, I gotta go all or nothing, and I just can’t bring myself to go all in.”

    “Better join Kagan’s opinion; she was working on this before it was even passed, so she’s got the best insight.”

    1. Goddamnit Dean, why do you always have to piss on my parade? I was optimistic on this!

    2. RC Dean, master of the judicial nutpunch.

    3. So being intellectually lazy and a coward is what defines a lot of these SC justices? No wonder this country is fucked.

      1. Well, I’m counting on laziness to get them to overturn the whole thing instead of trying to sort through it.

        1. I think its conveniently organized into Titles, so they could throw out the “insurance reform” bits without touching the rest of it, and not really cut into their online porn time.

    4. Wait, was Kennedy one of the justices snubbed by Obama at that State of the Union address?

      Payback time motherfucker!

    5. Ow, my balls!

  16. Since the law doesn’t explicity have an severabilty clause in it, the slam dunk correct answer is no.

    Of course that’s not likely to be the actual outcome.

  17. Britain Deserves Better

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