The United States Supreme Court is scheduled to hear three days of oral arguments concerning health care reform beginning March 26, 2012. While there are many issues involved, the majority of these arguments will focus on the issue of whether Congress overstepped its authority by including the minimum coverage requirements (commonly known as the “individual mandate”) in the Affordable Care Act (the “Act”). The individual mandate, scheduled to take effect in 2014, would require most citizens to pay a penalty if they do not obtain health insurance. While the debate concerning the constitutionality of the individual mandate will be the main issue, the Court will have to address the very difficult secondary question of whether other provisions of the Act would be severable from the individual mandate provision in the event the individual mandate provision were declared unconstitutional. If the Supreme Court decides that the provision is not severable, the entire law will surely be struck down.
In recently filed briefs, the opponents of the Act, including 26 states and the National Federation of Independent Business, argue that the individual mandate is at the core of the Act and that the Court could not “remove the hub of the individual mandate while leaving the spokes in place without violating Congress’s evident intent” in passing the Act. These briefs cite to the text, structure, operation and path through the legislative process as evidence that Congress would not have enacted the Act without the individual mandate.
The government argues in its brief, filed January 27, 2012, that nearly all of the Act can survive without the controversial provision if it is indeed declared unconstitutional. According to the government, the vast majority of the Act’s provisions have nothing to do with the individual mandate and would not be affected by a decision declaring it unconstitutional. As evidence that Congress would have intended the Act to go into effect without the provision, the government points to the fact that many of the provisions in the Act have already gone, or will go, into effect long before the individual mandate is required. The government has conceded, however, that two provisions of the Act, those that would bar denial of coverage based on medical or family history and would prohibit insurers from charging higher premiums based on such factors, could not function effectively without the mandate and should be invalidated if the mandate falls.
Because no party to the case argued that if found unconstitutional, the individual mandate, and only the individual mandate, must be removed from the Act, the Supreme Court appointed an attorney to file an amicus brief to argue this point. This brief is due February 17, 2012.
Regardless of the outcome, the Supreme Court’s ruling will have a significant impact on provision of health care in this country. Return to this site or contact the individuals listed below for continuous updates on how these decisions may affect your business.
If you have any questions or would like additional information about this topic, please contact Chad J. Wilson at 317.977.1473 or cwilson@wp.hallrender.com, Brian C. Betner at 317.977.1466 or bbetner@wp.hallrender.com or your regular Hall Render attorney.
