Mar 30, 2012 | By Mary Ellen Lacy, D.C.
March 30 update:
On Wednesday morning, the third day of oral arguments involving the constitutional challenges to the Affordable Care Act, the Supreme Court explored this question: If we find that the “individual mandate” is unconstitutional, does the absence of a severability clause mean that the whole law is unconstitutional?
The coalition of states argued that the failure of Congress to include a severability clause in the law means that, if one clause is stricken, all must be stricken. As such, if the individual mandate, described as the “heart of the law” is found to be unconstitutional, then they must strike the entire ACA. A well-worded "severability clause" in the law would have definitely preserved the rest of the law if another part were found to be unconstitutional. Nevertheless, the absence of such a clause does not mean that the Court is automatically obligated to strike the whole law just because one provision is found to be unconstitutional. The government attorneys argued as much and pleaded with the Court to practice restraint. They argued that, if one part was unconstitutional, then the rest of the law could be left to stand alone. So, oral argument was heard on Wednesday morning regarding this question. Court observers noted that ultra-conservative judges seemed to favor striking the law in its entirety if the individual mandate, called the heart of the law, was found unconstitutional.
An afternoon session was held to ascertain whether the health law's expansion of the Medicaid program for the working poor compels the participation of states to such a degree as to amount to coercion. The ACA requires those states that are participating in the Medicaid program to increase the amount of income one may earn to 133% of the national poverty level (which is about $23,000 for a family of four) when deciding upon eligibility.
The states contend that they need help with care of their poor residents and they must take federal funding. However, they allege it violates their sovereignty and it is unduly burdensome to increase the amount of people on Medicaid. Basically, the states argued that the offer of federal monies for Medicaid, which is co-sponsored by the states at varying percentages, is too good to pass up. As such, they continue, it amount s to a coercive, and therefore, unconstitutional mandate. However, the “offer you cannot refuse” argument seemed to lack acceptance from the judges. The administration argued that Congress has always been permitted to put conditions upon money awarded to states. Further, they contended, there is no coercion in making the deal so sweet that the states definitely want to take advantage of it. No program in which Congress has attached a condition to release federal dollars has ever been found to be “coercive.” A previous federal program that awarded money for highway construction to states that rose the drinking age to 21 years has been upheld by the Court. This issue seems to be a win for the administration but there are skeptics among pundits.
Lastly, much attention has been given to Justice Anthony Kennedy’s reactions and questions because he is considered a swing vote for the individual mandate issue and the possible death of the whole law if the mandate is found unconstitutional. Kennedy is a Catholic.
Although Solicitor General Donald B. Verrilli was uniformly said to have given a far better performance on this last day than the second day, the ACA is not on certain ground. Verrilli’s closing argument conceded that there was indeed an argument to be made for liberty. He argued that access to healthcare and the freedom from feeling the crushing weight of illness are also forms of liberty which need to be protected.
NETWORK continues to offer its full and prayerful support for the Affordable Care Act of 2010.
Original Post from March 28:
The Supreme Court convened on Monday, March 26, 2012, to hear arguments concerning the constitutionality of two provisions in the much-debated, highly partisan Affordable Care Act. The Court has agreed to hear arguments on four separate issues:
On Monday, March 26, the Justices heard arguments to determine whether an antiquated tax law would bar the case from even being litigated at present. It was not an issue that was appealed by either the coal