The Supreme Court took its final lap in the three-day oral arguments on the case of the Patient Protection and Affordable Care Act (PPACA).
Following two days of heavy legislative language dating back to the 19th century and debating the scope of the individual mandate, the highest federal court heard solutions for, if mandated unconstitutional, if and how the individual mandate could be severed from the PPACA itself.
Paul D. Clement, first to begin Wednesday’s hearings, came out of the gate stating, “If the individual mandate is unconstitutional, then the rest of the Act cannot stand. If you do not have the individual mandate to force people into the market then community rating and guaranteed-issue will cause the cost of premiums to skyrocket.”
Justice Ruth Bader Ginsburg later in the hearing asked Clement why the whole PPACA should be struck down if the mandate is deemed unconstitutional. “There are so many things in this act that are unquestionably okay,” she remarked. “I think you [Clement] would concede that reauthorizing what is the Indian Healthcare Improvement Act changes to long[-term] benefits, why make Congress redo those?...Why should we say it’s a choice between a wrecking operation…or a salvage job. And the more conservative approach would be salvage rather than throwing out everything.”
Clement said the provisions that have constitutional difficulties or are tied at the hip to those provisions are “the very heart of this Act.”
Justice Anthony Kennedy voiced concerns on how to test whether a rational objective can be coupled with another objective deemed “unconstitutional,” or if they can operate independently from one another.
Edwin S. Kneedler, on behalf of the Obama Administration, stated that there should be no occasion for the court to consider in this case issues of severability as he argued the minimum coverage provision is consistent with the Constitution. ”But if the court were to conclude otherwise, it should reject the … proposition that the entire act must fall,” he stated.
He argued that if the minimum coverage provision should fall, the guaranteed-issue and community rating rules should fall as well as “that is one package that Congress deemed essential.”
Justice Ginsburg posed to Kneedler the question of whether he was relying on Congress explicitly tying those three things together.
Answering in the affirmative, Kneedler said that “if you took the minimum coverage provision out and left the other two provisions in, there would be laid on top of the existing shifting of present actuarial risks an additional one because uninsured would know that they would have guaranteed access to insurance whenever they became sick. It would make the adverse selection in that market problem even worse.”
He concluded his presentation that all other provisions in the Act would increase access to affordable care and would have advantageous effects on price. “Again, Congress was invoking its traditional use of the tax code, which has long subsidized insurance through employers, has used that to impose a tax penalty on employers, to give tax credits. This is traditional stuff that Congress has done.”