Why the Whole Health Care Law Is in Jeopardy

By Sean Trende - June 27, 2012

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Indeed, even votes cast at conference aren’t dispositive. Most famously, Kennedy is reported to have changed his vote in Planned Parenthood v. Casey very late in the opinion-writing process. Regardless, we can’t really write off the possibility that the chief justice simply believes the law is constitutional -- the question does, after all, split conservative legal scholars.

Second, Justice Scalia’s dissent in the immigration case caught my attention. In 2000, a co-worker of mine who had clerked for Scalia pointed to this gratuitous concurrence in NFTC v. Crosby as a sign of future losses for conservatives. Sure enough, bad losses followed in the partial-birth abortion decision and a major school prayer case.

Since then, I have noticed that Scalia’s opinions do, in fact, become more caustic when things aren’t going well for conservatives. So it seems noteworthy that his scathing dissent in Arizona v. United States dwelled at length on the erosion of state sovereignty, which is really at the core of the conservative argument against the individual mandate. Is this a sign of his frustration with the way things are going on the health care law?

If this seems like thin gruel to you, I concur. I wouldn’t give more than a 15 to 20 percent chance of the Affordable Care Act being upheld. And even that slim chance really is more a nod to the fact that we don’t know what is going on in the justices’ heads, so even when all the evidence points one direction, we have to leave some room for the opposite outcome.

I won't dwell on the arguments for and against striking down the individual mandate, which have been beaten to death by this point.  But I do wish to emphasize that there’s also a substantial chance that the court will strike down the entire law, contrary to what almost all news outlets have reported recently. This issue turns around the arcane question of severability, and there’s a reason CNN Legal Analyst Jeffrey Toobin called the arguments on this issue a “plane crash” for the government (as opposed to a mere “train wreck” after the arguments on the mandate).

Basically, laws typically include a severability clause specifying that if any portion of the law is struck down as unconstitutional, the remainder should survive. But Congress didn’t include a severability clause in the health care law.

The good news for liberals is that the court typically maintains a presumption in favor of severability. In other words, even if there isn’t an explicit severability clause, it will nevertheless sever the unconstitutional portion if it feels it can do so without affecting the rest of the law. This makes eminent sense; if it finds an abortion rider to the HHS appropriations bill unconstitutional, there’s no reason to say that Congress can’t spend money on, say, Head Start, since Congress pretty clearly wouldn’t have intended for the two issues to either rise or fall together.

But the health care law is a much closer call. During the run-up to enactment, it was depicted as a series of interlocking parts: Guaranteed issue meant that anyone was eligible to purchase insurance, making universal coverage possible. The individual mandate meant that the so-called “death spiral,” where people wait until they are sick to purchase insurance due to guaranteed issue, thus driving up costs, would not occur. The subsidies enabled people to comply with the mandate. The exchanges allowed market forces to control costs after all of these regulations were implemented.

It isn’t at all clear how well these other pieces work without the individual mandate, nor is it obvious how the justices are supposed to decide what stays and what goes. There are congressional findings, for example, suggesting that the mandate is essential for the proper functioning of the exchanges, but there are also reasons to believe that the exchanges could still function well -- albeit not perfectly -- without the mandate. There are also items such as the Black Lung Benefits Act, which plainly could operate without the mandate. So once the court starts down the road of striking down things other than the mandate, it really has to go through a 2,700-page bill and make hundreds of judgment calls as to what stays and what goes. .

I think there are two main reasons that the court might choose not to infer severability and either throw out the entire law, or throw out Title I (and possibly Title II), effectively gutting the bill. First, the government let the proverbial camel’s nose under the tent: It conceded that if the court threw out the mandate, then a few other provisions, such as guaranteed issue and community rating, would have to go as well. 

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Sean Trende is senior elections analyst for RealClearPolitics. He is a co-author of the 2014 Almanac of American Politics and author of The Lost Majority. He can be reached at Follow him on Twitter @SeanTrende.

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