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For months we heard that health reform could collapse in one
piece if the individual mandate was found to be unconstitutional as
Congress—by accident or intent—did not include
a severability clause in the final version of the Affordable Care
Act (ACA).
So what happened? Why isn't anyone focused on severability
now?
Well... as you now know, the individual mandate was upheld as a
tax rather than under the Commerce Clause so severability became
irrelevant for the mandate. Where severability could have been
necessary is in the courts ruling of the Medicaid expansion.
However, Chief Justice Roberts officially took the issue out of
play in the Majority Opinion stating that due to the severability
clause in the underlying Medicaid law rendered the issue null and
void.
That fully remedies the constitutional violation we have
identified. The chapter of the United States Code that contains
§1396c includes a severability clause confirming that we need
go no further. That clause specifies that "[i]f any provision
of this chapter, or the application thereof to any person or
circumstance, is held invalid, the remainder of the chapter, and
the application of such provision to other persons or circumstances
shall not be affected thereby."§1303.
Of course, this did not stop Justices Scalia, Kennedy, Thomas,
and Alito from elaborating their own view in the Dissent that the
law did not include a severability clause and therefore absolutely
should fall as one piece. Not only did they discount the
Majority's rationale regarding the Medicaid statute, they took
one step further in a separate "Severability" section of
the Dissent making it very clear that if they had been in the
majority and ruled that the individual mandate and/or Medicaid
provisions should fall that the entire law would come down.
So, the bottom line is that while the severability issue was
essentially moot in the courts decision, it could have been a game
changer had Roberts sided with the minority and the court ruled 5-4
against the mandate. Given the minority opinion on
severability, there is little doubt the entire law would have been
thrown out completely.
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