The 11CA Individual Mandate Ruling - Bonus Round
By Hadley Heath
This is a "bonus round" blog in a series of blogs about the 11th Circuit Court of Appeals' ruling on ObamaCare. You can check out Round I, Round II, or Round III, if you want, but this post below is about severability.
Finally, after making very clear that the individual mandate has to go, the Court turned to severability in part 7 of the majority opinion. The majority has to be very convincing here, because they are overturning the decision of the lower court on this issue.
The Court makes the valid point that many of ObamaCare’s provisions have nothing to do with the individual mandate or with private insurance at all. They name several examples, like the mandate that nursing mothers have a private space at work to express milk. On page 191, the Court quotes Alaska Airlines, “Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.” Ok – I get it, Congress could still expand Medicaid without enacting an individual mandate, etc.
Furthermore, the Court points out that, according to Congress’ own drafting manuals, laws don’t have to include a severability clause to indicate that they are severable. But on the contrary, laws should include a non-severability clause to indicate that multiple provisions of a law are not severable.
So far, so good. But then we arrive at the part where I don’t agree with the Court: There are a few reforms to the private health insurance industry that I believe cannot be severed from the individual mandate. Among those are guaranteed issue and the required sale of insurance to consumers with preexisting conditions. The majority writes:
In this regard, our severability concern is not over whether the two reforms can “fully operate as a law.” They can. Rather, our severability concern is only whether “it is evident” that Congress “would not have enacted” the two insurance reforms without the individual mandate. Alaska Airlines, 480 U.S. at 684, 107 S.Ct. at 1480.
They conclude then, that because Congress’ objective in the enactment of the Affordable Care Act was to reduce the number of Americans without health insurance, and because guaranteed issue and the preexisting condition piece work toward that objective that, “All other things being equal, then, a version of the Act that contains these two reforms would hew more closely to Congress’s likely intent than one that lacks them.”
I disagree with the Court on this point, because I do not believe it was Congress’ objective to ruin the private health insurance industry (with costly reforms that encourage opportunistic behavior). I do not believe it was Congress’ intent to create the ugly circumstances that will materialize in an ObamaCare-sans-individual-mandate world. I think the judges who wrote this masterful majority opinion are smart enough to realize this, so the question remains in my mind – why did they rule this way on severability?
Supreme Court Justices will study this opinion from the 11th Circuit intensely, along with all the other complaints, responses, briefs, and rulings in the ObamaCare cases. This most recent ruling makes some important points that the SCOTUS will not be able to ignore. The fate of the mandate, and ultimately the fate of the entire law, will be decided in the High Court.
On one last personal note, after listening to the oral arguments in June, and reading this ruling from the 11th Circuit (in Atlanta), I’m going to abandon my personal efforts to hide my Southern accent. The Supreme Court, and the rest of America, will have to listen to these voices of reason from Judges Frank Hull (oh, yes, she’s a woman!) and Joel Dubina – even if these judges have thick Southern accents. The ruling could’ve gone further, to strike down the whole law, but I’m proud that the Southern Circuit produced such an exhaustive, sound discussion of the individual mandate and why it is unconstitutional.