Health reform on trial: Day 3 of Supreme Court hearings

Justices spar over law's survival

Topics: Health Policy, Market Trends, Strategy

March 28, 2012

This story is in progress. Last updated at 1:30 p.m. ET

Dan Diamond, Managing Editor

One more day of Supreme Court debate around the Affordable Care Act's constitutionality.

And two main questions, as the Supreme Court wraps up oral arguments today:

  • Can the ACA survive without the individual mandate?
  • Is Congress allowed to force states into expanding Medicaid?

Survival and 'severability'

Wednesday morning's arguments centered on whether the ACA's individual mandate, which was debated yesterday and may be ruled unconstitutional, is "severable" from the entire law.

It's a critical point. If justices decides that the ACA can't function without the mandate, the entire law may be struck down.

Often, severability isn't an issue for major legislation; Congress typically adds a clause that would allow a law to stand even if one provision is found to be at fault.

But for some reason--possibly because of the messy lawmaking process in March 2010, when the House and Sentate eschewed a traditional conference committee to finalize the ACA--lawmakers forgot to add a severability clause.

  • Catch up with recaps from Day 1 and Day 2 of the Supreme Court's oral arguments.

Wednesday morning's arguments

The Wall Street Journal's "Washington Wire" reports that the high court's liberal judges "went head to head" with conservative justices in their advocacy of the ACA.

Justice Sonia Sotomayor suggested that the Supreme Court might be meddling by repealing the entire law, asking if Congress--and not the court--was best suited to make decisions about expanding health coverage. In response, Justice Samuel Alito argued that the ACA would not have passed Congress without the individual mandate.

However, the justices didn't reach any consensus on how to move forward with the remainder of the overhaul.  According to Politico, most of the justices seemed opposed to eliminating the entire law--but their positions on how much of the law to maintain were "murky."  As SCOTUSblog reports, the justices also appeared hesitant to take up the "onerous task" of sifting through the health reform law to discern what of the overhaul should remain.

Medicaid expansion up for debate

The afternoon session will focus on the ACA's Medicaid expansion, and whether that's constitutional, too.

States have argued that the federal law is illegally coercive, as failing to follow the ACA's requirements would put all of their Medicaid funding at risk. The Obama administration has responded that the ACA's terms are generous to states, which can voluntarily withdraw from Medicaid at any point.

But the White House needs states to remain in the program for the ACA to reach its potential. The Medicaid expansion was designed to deliver on one of the law's core tenets: Expanding coverage. Roughly half of the 31 million Americans expected to gain health insurance under the ACA--about 16 million--would get it through the Medicaid program.

The case also has huge legal significance, although it's drawn less attention than the debate over the mandate. As Robert Pear writes in the New York Times, the states' case has "implications that go far beyond health care ... [affecting] federal grants to the states for other purposes, like education [and] transportation."


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