It's a technical issue, but one that will be important if the U.S. Supreme Court strikes does vote to strike down the individual mandate portion of the Patient Protection and Affordable Care Act. If the mandate that all Americans buy insurance in 2014 or face a penalty when they file their federal tax form in 2015 is ruled unconstitutional, does the rest of healthcare reform fall, too?
Or, as Justice Elena Kagan so neatly put it: "Is half a loaf better than no loaf?"
Attorney Paul Clement, representing the 26 states challenging the Act, argued yesterday that without the mandate, the government could not require payers to provide insurance to everyone--regardless of pre-existing conditions--at more uniform rates.
The government agrees the individual mandated inextricably is linked with the insurer provisions but says the other pieces of the Act should stand no matter how the court rules on the individual mandate.
But Clement took the argument further: All of the Act's provisions are "tied at the hip," and the provisions facing challenges are at "the very heart of this Act," he argued. "[They] are interconnected to the exchanges, which are then connected to the tax credits, which are also connected to the employer mandates, which [are] also connected to some of the revenue offsets, which [are] also connected to Medicaid. If you follow that through, what you end up with at the end of that process is just sort of a hollow shell ... you can't possibly think that Congress would have passed that hollow shell without the heart of the Act."
The better option, he said, would be to strike down the whole law and let Congress start over with a clean slate.
Arguing on behalf of the government, Edwin Kneedler, the deputy solicitor general, said there are many provisions of the Act that are already in effect even without a minimum coverage provisions, such as the 2.5 million young people age 25 and under who now have coverage under the law.
The justices also spent part of the day considering an expansion of the Medicaid program for low-income Americans, which could extend coverage to 15 million people--and withhold funding for those who do. The states say the expansion is unconstitutionally coercive; the government says it's nothing new.
"Congress has expanded Medicaid coverage ... many times without there being a minimum coverage provision," Kneedler told the court.
And the government already has the power to cut funding for Medicaid programs, although it has never done so.
Still, some justices suggested, even a threat that has never been enforced could affect states' decisions about whether to participate in the ACA or to opt out of all or part of it.
"Of course no state is going say, 'OK, go ahead, make my day, take [the funding] away,'" Chief Justice John Roberts said.
After three days of historic hearings and amid speculation from some quarters that the individual mandate is in trouble, the matter is now in the hands of the justices. A ruling is expected by the end of June.
To learn more:
- read the transcript or listen to the audio recording of the Wednesday morning session on severability
- here's the transcript and the audio recording of the Wednesday afternoon session on expanding Medicaid coverage