A decision on Virginia's challenge to the constitutionality of ObamaCare's mandating of individual health insurance purchases is set to be announced Monday. The decision by the Eastern District Court of Virginia could potentially invalidate major portions, if not all of the act, because of the lack of a severability clause, as Louis Case explained to AT readers in September:
Normally, all comprehensive laws contain a boilerplate severance clause: it says that if any portion of the law is found to be unconstitutional, that portion is severed from the rest of the law -- that is, the rest of the law stands.
But ObamaCare contains no severance clause. Virginia is asserting that if it prevails on its substantive claims, the whole law is unconstitutional. (If Virginia does not prevail, any one of the twenty-plus legal challenges have the same severance argument available.)
...as Processor Kopel argues, the individual mandate is at the very heart of the legislation. It all must be struck if the individual mandate is. To paraphrase his argument, ObamaCare would turn our private insurance companies into ultra-regulated public utilities (and probably bankrupt ones at that). But the scheme is utterly senseless in the absence of the individual mandate, and that mandate is not severable from the rest of the act.
The White House has conceded some ground on the severability issue, as explained by Randy Barnett at the Volokh Conspiracy:
In a briefing of White House reporters yesterday, anticipating the forthcoming decision, the White House issued a fact sheet conceding that, should the individual mandate be held unconstitutional, the regulations being imposed on insurance companies "would" also fall:
The Affordable Care Act also bans insurance companies from discriminating against people with preexisting conditions beginning in 2014 (In 2010, insurance companies were banned from discriminating against children). However, unless every American is required to have insurance, it would be cost prohibitive to cover people with preexisting conditions. Here's why: If insurance companies can no longer deny coverage to anyone who applies for insurance - especially those who have health problems and are potentially more expensive to cover - then there is nothing stopping someone from waiting until they're sick or injured to apply for coverage since insurance companies can't say no. That would lead to double digit premiums increases - up to 20% - for everyone with insurance, and would significantly increase the cost of health care. We don't let people wait until after they've been in a car accident to apply for auto insurance and get reimbursed, and we don't want to do that with healthcare. If we're going to outlaw discrimination based on pre-existing conditions, the only way to keep people from gaming the system and raising costs on everyone else is to ensure that everyone takes responsibility for their own health insurance. If we don't, then we will go back to the days of allowing insurance companies to deny coverage to people with pre-existing conditions.
If the constitutional challenge to the Affordable Care Act's individual responsibility requirement ultimately prevails, it would mean that provisions preventing health insurance companies from discriminating against people with pre-existing conditions would also be invalidated by the court because the two are inseparably linked. If insurance companies are required to cover those with pre-existing conditions, who are potentially more expensive to cover, without requiring everyone-both sick and healthy people-to have insurance, premiums will increase rapidly. Similarly, other provisions - including banning insurers from discriminating based on health status, age and gender - would also fall.
But the White House also maintains that:
However, many parts of the new law would remain intact. While the law does not include a severability clause, courts have a constitutional obligation to preserve as a much of a statute as possible. Portions of the law such as the new provisions that expand access to Medicaid and create Exchanges -- new competitive marketplaces where consumers and small businesses can shop for private coverage giving them market power similar to large employers and permits easy comparison of available options based on price, benefits, services, and quality -- will be unaffected by the rulings in these cases. Other provisions that would remain effective include tax credits for small businesses and rules that will strengthen Medicare by closing the prescription drug coverage gap known as the donut hole and extend free preventive care to Medicare beneficiaries.
Monday could be a very interesting day.
Hat tip: Clarice Feldman