Maybe the Affordable Care Act Can Live Without the Individual Mandate

One of the debates over Texas v. California — the big  Affordable Care Act (ACA) constitutionality case — concerns what should happen if the U.S. Supreme Court declares the individual mandate provision to be unconstitutional.

Many individuals and groups have sent in their own thoughts, in “friend of the court briefs,” to explain why they think the Supreme Court can cut out the mandate without killing the whole law.

Resources

• Copies of the amicus briefs are available here.
• An earlier Texas v. California article is available here.

Some of the parties submitting the briefs, including officials in California and other states that support the ACA, and America’s Health Insurance Plans, would prefer to see the individual mandate stay in effect.

But at least one of the briefs comes from the states of Montana and Ohio, who say the individual mandate is unconstitutional.

Congress has no authority to command people to buy products, and allowing it to have that authority would give it what amounts to a general police power, according to Montana and Ohio.

“The Constitution does not vest such immense power in Congress,” the states contend.

But, at the same time, none of the court’s precedents “permits striking down an entire act based on the unconstitutionality of a single insignificant provision,” the states say.

The History

The ACA includes hundreds of pages of text that deal with matters such as funding for graduate medical education, Medicaid expansion fund, Medicare Part D prescription drug benefits, and other topics that have little to do with ordinary major medical insurance.

The ACA also includes Section 5000A, a provision that requires many people to have a minimum level of health coverage or else pay a penalty.

When Congress passed the Tax Cuts and Jobs Act of 2017, it set the individual mandate penalty at zero.

Back in 2012, Supreme Court let the mandate survive a lawsuit. The plaintiffs argued that the mandate was just as unconstitutional a requirement for people to buy and eat broccoli. The Supreme Court avoided ruling on that aspect by classifying the mandate as a text. The court majority held that a federal law prohibits people from suing to block new federal taxes.

Now, officials from Texas and other states that generally oppose the ACA say that, by setting the mandate penalty at zero, Congress has converted the ACA individual mandate provision from a tax on people who fail to have enough to coverage to a bare, unconstitutional requirement for people to pay for a commercial product.

Some laws have “severability” provisions. These provisions keep the rest of the law intact if a court tosses out one part.

The ACA contains no severability provision.

A district court judge in Texas ruled that the mandate is now an unconstitutional requirement for people to buy insurance, rather than a tax, and that, because the ACA lacks a severability clause, all of the ACA must be thrown out.

The 5th Circuit upheld the lower court ruling declaring the individual mandate to be unconstitutional, but it asked the district court judge to take another look at whether throwing out the mandate would really call all of the ACA.

The Supreme Court yanked the case away from the district court judge, and into its own stream of cases, in March.

The Arguments for Severability

Here are four of the arguments groups made for letting the ACA survive the death of the individual mandate.