Did They Screw Up the Affordable Care Act?
March 29, 2012 9:05 AM   Subscribe

Why does the Affordable Care Act (aka Obamacare) lack a severability clause?

As far as I understand it, if the Supreme Court strikes down the individual mandate portion of the Affordable Care Act, then the entire law must be thrown out, because the law has no "severability clause" that allows you to preserve the rest of the law if one portion is declared unconstitutional. What I want to know is why, and who is responsible? I'm familiar with the leftish argument that Obama is a crypto-Republican who secretly wants health care reform to fail, but that doesn't explain why he didn't just sabotage it before passage, instead of going through this Supreme Court dog-and-pony show. Was the lack of a severability clause deliberate? Was it an oversight? Or was it removed as part of the dealmaking to get the law passed? I already have my own opinion about this, so I'm less interested in getting people's opinions on this than on getting some facts that might get me to revise my opinion. Anybody here with inside-the-Beltway, journalistic, poli sci, legislative, or other relevant knowledge who can explain this?
posted by jonp72 to Law & Government (15 answers total) 2 users marked this as a favorite
That isn't true though. The Supreme Court does have the option to just strike that provision and leave the rest to be figured out by Congress. They were actively debating that fact yesterday.
posted by LeanGreen at 9:07 AM on March 29, 2012 [4 favorites]

As far as I understand it, if the Supreme Court strikes down the individual mandate portion of the Affordable Care Act, then the entire law must be thrown out, because the law has no "severability clause" that allows you to preserve the rest of the law if one portion is declared unconstitutional.

You are mistaken. It is not the case that laws are nonseverable unless there is a severability clause. The Supreme Court can and does sever laws' provisions. Indeed, much of the recent oral arguments dealt with the Court mulling over what to do with ACA if the mandate gets junked.
posted by Sticherbeast at 9:09 AM on March 29, 2012

They would only have to throw it all out if everything depended on the mandate. For example, if prohibition was declared unconstitutional then Volstead would have had to be scrapped because everything depended on Prohibition.
posted by michaelh at 9:14 AM on March 29, 2012

My understanding is that severability is inherent (or not) in the statute. The Sups are trying to work that out. I suppose you can no more declare a portion of the law severable within the statute, than you could say therein, "And also this law is way constitutional."
posted by Infinity_8 at 9:14 AM on March 29, 2012 [2 favorites]

The key thing is that you're wrong about the consequences of not having a severability clause. It doesn't actually matter.

That said, there are reasonable policy reasons not to include it. If the mandate goes but everything else stays private insurance companies likely couldn't remain in business. Whether or not he's a crypto-Republican Obama doesn't want that.
posted by gerryblog at 9:20 AM on March 29, 2012

Why does the Affordable Care Act (aka Obamacare) lack a severability clause?

Because the law has a million different moving parts. Casting every possible permutation of clauses that could be overturned would be a nightmare. What if A was overturned? A+B? A+C? ZZ + AB + TB?

Many laws passed have no severabilty clause. It doesn't matter, so long as there's no nonseverability clause. The Court will decide what is and is not constitutional. No matter what a severability clauses states, it's always up to the courts.

Nobody who voted for it read it.
That is verifiably untrue. I know of several members who actually read it. Not that it matters though. Congresspeople don't read bills because it would be pointless. They're not lawyers or legislative language professionals. That's what their lawyers and aides are for.
posted by General Malaise at 9:24 AM on March 29, 2012 [1 favorite]

I can't find it to link to but there was a discussion on NPR yesterday about this. One of the commentators speculated that it was a bit of a gamble; that by having no severability clause it might make any Supreme Court justices sitting on the fence less likely to throw out the controversial parts of the act if it made it more likely the entire thing would be declared unconstitutional.
posted by TedW at 9:25 AM on March 29, 2012 [1 favorite]

As a matter of legislative drafting, I would guess there is no severability clause because the jurisprudence on severability is actually quite reasonable, so there is less of a need to spell it out. It might have been a lot of effort to figure out severability at the drafting stage, so easier to leave it out.
posted by yarly at 9:36 AM on March 29, 2012

[To the extent that this is an answerable question about the severability issue, this is fine, but this thread is absolutely not the place to get into a general discussion/argument about HCR-related stuff. If you have a comment about moderation, make it in Metatalk or at the contact form, not in here.]
posted by cortex at 9:45 AM on March 29, 2012

The act also have had some phasing and some insurers decided to implement parts early. BCBS allows for coverage up to 26.

posted by stormpooper at 9:53 AM on March 29, 2012

I can't tell you whether it was intentional on the part of Congress to not insert a severability clause. However, I can tell you that from a policy perspective, there are defensible reasons to prefer the entire law be overturned if any one part is overturned. Given that, it's not at all a foregone conclusion that the people who drafted this without that clause wanted it to fail or that they just assumed a severability clause wasn't necessary.

The coverage provisions in the ACA are often described as a "three-legged stool": (1) requiring every insurer to sell a policy to anyone who asks, regardless of health history; (2) a mandate that everybody has to get coverage somewhere; and (3) premium subsidies for those who cannot afford to buy insurance.

The imagery of a three-legged stool is apt because if you cut one leg off, the stool can't balance and will fall over. The same is true to a greater or lesser extent for each leg above. If for some reason #3 (premium subsidies) was overturned or legislated away, you'd end up with poor people penalized for not buying insurance that they could never afford--clearly an outcome you want to avoid. Same thing with #1; if you legally require people to obtain insurance but don't require insurers to sell them policies, you could again penalize blameless people who are willing to buy coverage but can't find anyone to sell it to them.

Dropping out the individual mandate (#2) might be a little less destabilizing than dropping out either #1 or #3, but it still has the potential to lead to pretty adverse consequences. Best-case scenario, dropping the mandate but keeping the other pieces doesn't change behavior, because the premium subsidies are enough to draw people who aren't legally required to buy insurance into the market and convince them to pay for coverage even if they don't need it in the short-term. Worst-case scenario, nobody buys insurance anymore until they are facing a very costly illness or injury, since insurance companies are required to sell you a policy even if you've avoided paying premiums until you need it. This "adverse selection" causes a death spiral of risk in the individual market, and insurance companies totally withdraw and stop offering coverage to anybody except employer groups (where most of the business is now, anyway). End result: the roughly 17 million people currently insured through the individual market lose coverage, nobody gains coverage, and we're all worse off.

To me, it doesn't seem surprising at all that those who supported the law understood that you have to have all three parts of the coverage reforms, and if you lose one you're better off gong back to the drawing board rather than ending up with unintended consequences that actually make some people much worse off.
posted by iminurmefi at 10:14 AM on March 29, 2012 [2 favorites]

posted by Chocolate Pickle at 10:14 AM on March 29, 2012

From what I've read elsewhere, there originally was a severability clause in the bill, and the Democrats removed it.

It was a tactic, but it misjudged the situation. The Democrats assumed that most of the law's provisions would be popular with voters, and they removed the severability clause to protect the mandate, on the assumption that without a severability clause, then challenges to the mandate would effectively be challenges to the entire law, and with voters (assumed to be) overwhelming in favor of it, that would deter challenges to the mandate.

...that's what I've read. But the assumption of popularity turned out to be wrong; polls have consistently shown a plurality oppose the law and favor repeal.
posted by Chocolate Pickle at 10:21 AM on March 29, 2012

The key thing is that you're wrong about the consequences of not having a severability clause. It doesn't actually matter.

This is correct. Whether or not a court decides to strike down a law in its entirety or simply strike offending portions is largely up to the court and depends more on the operation of the law than anything else. The presence or absence of such a clause matters, but not very much.
posted by valkyryn at 10:31 AM on March 29, 2012 [1 favorite]

[Thread is completely and totally not about how popular the health care law is and do not make it into one, period, thank you.]
posted by jessamyn at 1:02 PM on March 29, 2012

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