Oral arguments in the legal challenge to the Patient Protection and Affordable Care Act (PPACA) currently under consideration before the Supreme Court will start in March. The justices will read all of the briefs before the oral arguments. On January 27, the Obama administration filed one of its most important briefs—a response to the severability argument being made by both the 26 states challenging the law and the National Federation of Independent Businesses (NFIB). The plaintiffs argue that since PPACA does not contain a “severability clause,” if one provision in the law is struck down, the whole law must be struck down.
The administration’s brief argues that the individual mandate provisions could be separated from the law, and that only the community rating and guaranteed issue provisions should be struck down if the mandate is found to be unconstitutional. The Justice Department says: “other provisions can operate independently and would still advance Congress’s core goals of expanding coverage, improving public health and controlling costs even if the minimum coverage provision were held unconstitutional.”
The American Academy of Actuaries agrees with this point in an amicus brief it filed with the court. The Academy argues that the rest of PPACA would not be actuarially sound without the mandate.
Other important briefs in the case are due next on February 6. The 26 states challenging the law and the NFIB will respond to the government’s argument that the mandate is constitutional. The states, NFIB and the federal government will also respond to the argument that the federal Anti-Injunction Act prevents review of the law at this point in time. The Anti-Injunction Act is a federal law that says individuals must pay a tax before they can sue over it. All parties in the current case before the court agree that that this measure should not apply, but 4th Circuit Court of Appeals ruled that it does apply.
On January 23, the justices denied a request for debate over whether Justice Elena Kagan should recuse herself from the healthcare reform case. A group known as Freedom Watch asked the court for permission to file a brief regarding Justice Kagan’s participation in the case. Their request was rejected without comment. However, the court did note that Justice Kagan did not participate in the discussion surrounding this decision. In response, Freedom Watch put together a new request asking the court to devote time during oral arguments to debate whether or not Justice Kagan should be required to recuse herself. This request is also expected to be denied. Chief Justice John Roberts indicated in December that he feels that all of the justices are quite capable of making their own determinations as to if and when recusals are appropriate.
Groups and individuals who oppose PPACA have called for Justice Kagan to recuse herself in the case since she was President Obama’s solicitor general when the law was enacted. Many PPACA advocates have called on Justice Clarence Thomas to recuse himself because his wife is a lobbyist who has advocated strongly in opposition to the healthcare reform law. Neither justice has taken any steps to exempt themselves from substantive discussions about the case to-date, including whether or not the Supreme Court should consider this matter at all. It appears unlikely that either justice will step down from ruling on this case.
DMEC Legislative Updates 