Kate Hicks


If yesterday was the dramatic climax of the health case, then today is its denouement. The Court will consider two questions today: this morning, If the mandate is unconstitutional, how much, if any, of the PPACA may remain? This afternoon, Is Medicaid expansion coercion of the states?

These two issues are decidedly less sexy than the mandate, and in all probability, more likely to go the federal government’s way. In general, the Court takes a deferential stance to the legislative branch. While it may decide that Congress overstepped its power by enacting the mandate, it’s unlikely to issue them the rebuke the states and private respondents hope to see on tomorrow’s issues.

MORNING: Severability

In certain bills – generally those that include constitutionally controversial policies – Congress will include a “severability clause.” They’ll say that even if principle X in this bill is found to be unconstitutional, the rest of the bill may remain intact. They can avoid scrapping an entire bill, most of which may be perfectly sound, for the sake of one questionable element.

The individual mandate is one such policy that may have warranted a severability clause; it’s a 2,000-plus-page behemoth. Why would they want to risk throwing it all out if just the mandate is found to be unconstitutional? (Of course, most conservatives would be perfectly fine with that in this case, but the theory holds true.)

However, the PPACA doesn’t include a severability clause. This has been the subject of speculation from the start. Did Congress intend for the entire bill to go along with the mandate? What about the pieces of the bill that didn’t rely on the mandate? Was the lack of a severability clause an oversight, or deliberate?

If the Court finds that the rest of the bill may stand, even without the mandate – and then Congress chooses not to repeal the rest of the law – then the healthcare industry will be thrown into chaos. Sick people, now guaranteed coverage, will flood the market, and without healthy people to keep the cost of premiums acceptably low, insurance will become even less accessible than before.

Thus, no one is arguing that the mandate alone is severable. As on Monday, a court-appointed lawyer will present that case, appealing to the Court’s general unwillingness to strike down more than is absolutely unconstitutional.

Kate Hicks

Kate Hicks is one of Townhall.com's web editors. You can follow her on Twitter @KateBHicks.