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Further thoughts on today’s severability argument

I wanted to offer a few additional thoughts on the severability argument, supplementing Lyle’s recap.

I agree with Lyle that the 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.

I sensed that there was a majority of the Justices who did not believe that it made sense to invalidate a large number of “peripheral” measures in the act — like provisions reauthorizing benefits for miners with black lung disease — that have very little, if any, connection with the individual mandate.

But that still leaves a lot of very important provisions up for grabs.  The government argued that the mandatory coverage provision (which prohibits insurers from turning sick or risky customers away) and the community rating provision (which effectively prohibits charging those customers more because of their greater expected health needs) should fall with the minimum coverage provision, and there seemed to be widespread agreement with that proposition, even among the liberal Justices.

So the real question, in my mind, is how much further the eventual majority would go — would they throw out the exchanges, the provision requiring coverage of young adults on their parents’ policies, the requirements on employers, the various subsidies, and the Medicaid expansion?

(The latter is important because, I believe, it is doubtful whether Justice Scalia will vote to hold the Medicaid expansion unconstitutionally coercive, but he does seem ready to dispense with it on severability grounds. So it seems possible that the Medicaid expansion could be imperiled by a ragtag coalition of Justices who believe either that it is coercive or that it should fall along with the mandate.)

I suspect that there will eventually be a majority for the proposition that any provision that significantly increases costs on insurers that would be offset by the mandate, or otherwise depends in a significant way on the mandate, should stand or fall with it.  Just what the provisions are, it is very hard to say.  It may be that, in the end, applying this principle will fail to yield a majority except on the provisions the government says should fall with the mandate.  (It is also possible, but I think less likely, that this would lead to a majority deciding to strike all but the clearly peripheral provisions.)

All of this assumes, of course, that a majority is first willing to hold the mandate unconstitutional.  I am less confident than Lyle, however, that the argument bodes well for the mandate.  The fact that Justice Kennedy was such an active participant in the discussion, plus the fact that he was one of the Justices expressing the most skepticism of the government’s plea for a narrow approach to severability, suggested to me that he is operating on the presumption that the mandate will fall.



Recommended Citation: Kevin Russell, Further thoughts on today’s severability argument, SCOTUSblog (Mar. 28, 2012, 4:53 PM),