U.S. SC asks if ObamaCare can work without mandate

John O'Brien Mar. 28, 2012, 9:57am


WASHINGTON (Legal Newsline) - One of the issues being debated on the third day of health care reform arguments before the U.S. Supreme Court could end up being the most important or a moot point.

Wednesday, the justices will hear arguments on the severability of the individual mandate, which was debated Tuesday, from the rest of President Barack Obama's health care reform that was passed two years ago.

The individual mandate requires individuals who do not purchase health insurance to pay a $695 yearly penalty. Those challenging the law say it is unconstitutional to force an individual to participate in a marketplace.

They also say the mandate is too crucial to the overall effectiveness of the law to be simply severed from it, if the mandate is found unconstitutional. The entire law should fail, they say.

That's the argument being made by 26 states that challenged the law in Florida federal court. There, a judge agreed with their severability claims, but that was overturned by the U.S. Court of Appeals for the 11th Circuit.

"Excising the individual mandate from the Act does not prevent the remaining provisions from being 'fully operative as a law,'" Eleventh Circuit Chief Judge Joel Dubina wrote in August.

"In light of the stand-alone nature of hundreds of the Act's provisions and their manifest lack of connection to the individual mandate, the plaintiffs have not met the heavy burden needed to rebut the presumption of severability."

Vinson, in his opinion, noted that the federal government used the word "essential" 14 times in their motion to dismiss when describing the individual mandate and that the act did not contain a severability clause.

At one point, the federal government wrote, "(The individual mandate) is essential to Congress' overall regulatory reform of the interstate health care and health insurance markets."

For Vinson, it was a matter of the structure of the law. He decided the mandate was part of a carefully balanced and clockwork-like statutory arrangement, rather than part of a bundle of separate legislative enactments.

"The lack of a severability clause in this case is significant because one had been included in an earlier version of the act, but it was removed in the bill that subsequently became law," Vinson wrote. "In other words, the severability clause was intentionally left out of the act.

"The absence of a severability clause is further significant because the individual mandate was controversial all during the progress of the legislation and Congress was undoubtedly well aware that legal challenges were coming."

Vinson wrote that the mandate and remaining provisions of the law are "all inextricably bound together in purpose and must stand or fall as a single unit."

From Legal Newsline: Reach John O'Brien by e-mail at jobrienwv@gmail.com.

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