Monday, January 31, 2011

Health reform and the “severability clause”—Will the entire Act be declared unconstitutional because of the individual mandate?

Let’s assume the state attorneys general are able to get the courts to agree that the mandate to purchase insurance is unconstitutional. Does that automatically mean that the court will declare the entire Act unconstitutional? Not necessarily. After declaring a section of an Act unconstitutional, the courts determine whether the remainder of the Act remains valid. The guiding principle is this according to a report on statutory interpretation from the Congressional Research Service quoting a ruling in Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987) (quoting Buckley v. Valeo, 424 U.S. 1, 108 (1976)). “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.”

In other words, if the individual mandate to purchase health insurance is declared unconstitutional, then the issue will become whether Congress would have enacted the rest of the ACT if there were no individual mandate. We can be fairly certain that four members of the Supreme Court (Scalia, Thomas, Alito, and Roberts) will rule that the entire Act is unconjavascript:void(0)stitutional if they can find any piece of the Act unconstitutional such as the individual mandate. The question then becomes how the remaining five members of the court will rule. It should be very interesting.
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