What Portion of the PPACA Should Survive if the Individual Mandate Falls?

On Wednesday the court first considered the issue of severability, that is, what portions, if any, of the law should survive if the individual mandate or Medicaid expansion is held to be unconstitutional.  The plaintiff’s attorney argued that keeping portions of the law without the individual mandate would leave a “hollow shell” and that “Whatever you do, Congress is going to have options.”  However, it appeared that most justices were willing to consider retaining at least some of the PPACA’s provisions even if the individual mandate is upheld.  For example, Justice Sotomayor said “The bottom line is, why don’t we let Congress fix it” instead of striking down the entire law.  Also, Chief Justice Roberts noted that the PPACA includes provisions, such as one related to Native American health care, that are unrelated to the individual mandate.  Justice Scalia questioned the plaintiff’s argument, saying “You’re telling us that the whole statute would fall” if the court struck down even one provision and “That can’t be right.”  On the other hand, Justice Scalia also said it was totally unrealistic for the court to comb through every line of the 2700 page bill to determine what should go and what should stay.  In addition, Justice Kennedy said it would be “more extreme” for the court to attempt to piece together the remaining parts of the law and to do so “we would have a new regime that Congress did not order.”  Perhaps of significance, the court noted that the PPACA provisions that have already become effective might be viewed as already having been severed from the individual mandate and related provisions that become effective later in 2014.

Does the PPACA Unlawfully Coerce States to Accept Medicaid?

In the court’s concluding session on Wednesday, the justices considered whether the PPACA’s Medicaid expansion, requiring new state funding, represents an unlawful coercion of the states by the federal government.  The attorney for the 26 state plaintiffs reminded the court that it previously ruled that there are limits to what the federal government can require states to do to receive funds and that the condition cannot be “so coercive as to pass the point at which pressure turns into compulsion.”  However, Justice Kagan questioned “Why is a big gift from the federal government a matter of coercion? It’s just a boatload of federal money.  It doesn’t sound coercive to me.”  Chief Justice Roberts noted that states have been receiving Medicaid money with federal requirements attached for years, so they shouldn’t be surprised that the federal government has decided to expand them.  Justice Breyer noted that it is up to the Secretary of HHS to determine whether a state will be forced out of Medicaid and that administrative law requires the Secretary to act reasonably.  He said such an action has never been taken, although the plaintiffs offered a letter from HHS to a state which noted the Secretary’s authority to withdraw funding if the state did not conform its law to the federal requirements.  Taking a tougher line of questioning, Justice Alito noted that it would nearly impossible for states to turn down the large percentage of federal funding for the law’s Medicaid expansion.  He asked, “How could that not be coercion?”

The Aftermath

The court was expected to take private, tentative votes last Friday on the several issues summarized above.  Justices could always change their votes as deciding arguments are fashioned and majority opinion duties are assigned by the Chief Justice.  It would be unusual if the court did not release their decision by the end of June when the court’s term ends.  If all or parts of the PPACA are struck down by the court, it is unlikely that Congress will attempt to remedy the ruling or replace the law before the November elections.  What the Congress does decide to do during the lame-duck session will likely be determined by the new composition of the Congress and whether or not the President remains in office next year.  Republicans on the House Ways and Means Health Subcommittee used hearings to further showcase their position to “repeal and replace” the health reform law and called eight witnesses to put on the record additional arguments as to why the law and individual mandate are unconstitutional.

Big Data Research and Development Initiative

The Administration announced the $200 million “Big Data Research and Development Initiative” designed to amass large amounts of data, including health care data, for research purposes.  The six federal agencies involved include: the Defense Advanced Research Projects Agency; the Department of Defense; the Department of Energy; the National Institutes of Health; the National Science Foundation; and the U.S. Geological Survey.  Under the initiative, the NIH and the NSF plan to collaborate on a project to find new technologies and methods for data analysis, data management and machine learning.

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