The Supreme Court today granted certiorari in the Obamacare cases brought by 26 states and the National Federation of Independent Business. Oral arguments in the case will be held next year in Washington, D.C., probably in March. The court allotted 5 1/2 hours for arguments in the case. That’s many times the length of a usual Supreme Court argument, and probably more time than was devoted to any case in the last century.
The U.S. Court of Appeals for the Eleventh Circuit had declared the health care law’s individual mandate (requirement that individuals buy health insurance) unconstitutional as beyond Congress’s power under the Interstate Commerce Clause (Article 1, Section 8 of the Constitution). But it declined to strike down the rest of Obamacare, including provisions that even the government conceded were intertwined with, and not severable from, the individual mandate, such as restrictions on insurers taking into account pre-existing conditions, and mandatory issuance of insurance to people regardless of their health status (guaranteed issue). Two other appeals courts have upheld the individual mandate, while a federal judge in Pennsylvania struck down both the individual mandate and related portions of Obamacare.
Here are the questions that the Supreme Court has said it will decide in the case being reviewed (Docket Nos. 11-393, 11-398, and 11-400):
1. “Whether Congress had the power under Article I of the Constitution to enact the minimum coverage provision.” Two hours was granted for argument on this question.
2. The Court directs the parties to additionally brief and argue: “Whether the suit brought by respondents to challenge the minimum coverage provision of the Patient Protection and Affordable Care Act is barred by the Anti-Injunction Act.” An additional one hour was granted for argument on this question.
3. A total of 90 additional minutes was allotted for argument on the two severability questions: “Whether the ACA must be invalidated in its entirety because it is non-severable from the individual mandate that exceeds Congress’ limited and enumerated powers under the Constitution,” and “does the Affordable Care Act’s mandate that virtually every individual obtain health insurance exceed Congress’s enumerated powers and, if so, to what extent (if any) can the mandate be severed from the remainder of the Act?”
4. “Does Congress exceed its enumerated powers and violate basic principles of federalism when it coerces States into accepting onerous conditions that it could not impose directly by threatening to withhold all federal funding under the single largest grant-in-aid program, or does the limitation on Congress’s spending power that this Court recognized in SOUTH DAKOTA v. DOLE (1987), no longer apply?”
Earlier, I and my colleagues filed an amicus brief on behalf of legislators in Minnesota and North Carolina challenging the constitutionality of Obamacare, arguing that the 2010 healthcare law unconstitutionally exceeds Congress’s powers under the Commerce and Spending Clauses.
The Eleventh Circuit Court of Appeals was right to strike down the individual mandate as unconstitutional, and its ruling was carefully-reasoned and scholarly in that respect. But it was wrong to leave the rest of the Obamacare law intact. In refusing to strike down Obamacare in its entirety, despite its lack of a severability clause, the Eleventh Circuit claimed that the Supreme Court hasn’t so invalidated statutes since the New Deal. That is incorrect. The Supreme Court repeatedly invalidated statutes in their entirety in the 1980s, even when those statutes — unlike Obamacare — had language specifically approving severability in the statute itself. See, e.g., Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 764–65 (1986) (abortion case); Am. Booksellers v. Hudnut, 771 F.2d 323, 332 (7th Cir. 1985), aff’d, 475 U.S. 1001 (1986) (invalidating entire ordinance on First Amendment grounds despite severability clause). The government’s occasional suggestions to the contrary are just false.
Although the government argued that Obamacare as a whole should not be struck down, even it admitted that if the individual mandate were invalidated, closely-related provisions like guaranteed-issue and pre-existing condition should be invalidated along with it. I would have expected the Eleventh Circuit to give more weight to the Government’s admissions in its briefs that those closely-related Obamacare provisions are inextricably tied to the individual mandate, and thus not severable from it. See Purgess v. Sharrock, 33 F.3d 134, 144 (2d Cir. 1994) (“A court can appropriately treat statements in briefs as binding judicial admissions of fact”), citing Young & Vann Supply Co. v. Gulf F. & A. Ry. Co., 5 F.2d 421, 423 (5th Cir.1925).
I am puzzled by the Eleventh Circuit’s reliance on cases like United States v. Morrison, 529 U.S. 598 (2000) as standing for the proposition that an invalid provision is severable even if the statute lacks a severability clause, when cases like Morrison never discussed that issue. I helped represent the prevailing challenger in the Morrison case, and we never argued that the provision was non-severable (we didn’t care about the rest of the statute), nor did the court even address that issue, so the case is not binding authority for that proposition. “Cases cannot be read as foreclosing an argument that they never dealt with.” Waters v. Churchill, 511 US 661, 678 (1994) (plurality opinion); See also, e.g., Texas v. Cobb, 532 U.S. 162, 169 (2001) (“constitutional rights are not defined by inferences from opinions which did not address the question at issue”); Plaut v. Spendthrift Farm, 511 U.S. 211, 232 n.6 (1994) (“the unexplained silences of our decisions are not entitled to precedential weight”).
The appeals court should have struck down the entire healthcare law after finding a central provision like the individual mandate to be invalid. See, e.g., Carter v. Carter Coal Co., 298 U.S. 238 (1936) (wholly invalidating a law whose central provisions exceeded the federal government’s power to confer, despite the presence of a severability clause); see also EEOC v. CBS, 743 F.2d 969, 973 (2d Cir. 1984); cf. Hotel Employees v. Davis, 981 P.2d 990, 1010 (Cal. 1999).
Regardless of whether it is constitutional, Obamacare is also harmful to the economy, medical innovation, and the health care system. Earlier, I discussed some of the bad effects of Obamacare on patients, employers, consumers, and the insurance market.