SUPREME COURT APPARENTLY DIVIDED ON INDIVIDUAL MANDATE AND WHETHER TO SCRAP PPACA ENTIRELY
In the U.S. Supreme Court’s hearings last week on the Patient Protection and Affordable Care Act (PPACA), the justices seemed to have mixed views on both the constitutionality of the individual mandate, and the proper course of action should the mandate be found unconstitutional. One possibility would be to strike only the mandate; another would be to strike down the entire law; and a third would be to eliminate only the two other provisions most closely related to the mandate. Those provisions, the guaranteed-issue and community-rating provisions, are intended to make insurance affordable even for the sick.

The individual mandate is considered critical to PPACA as a whole because without it, it is expected that many people would not buy health insurance until they are sick. Other PPACA provisions would require insurance companies to cover these individuals, without the ability to spread their costs over healthier groups of insureds. Justice Anthony Kennedy pointed out that striking down the mandate without deleting the other coverage provisions would create risks for insurance companies that Congress took care to avoid in drafting the law.

Justice Antonin Scalia agreed that it would be preferable to strike the entire law and allow Congress to start over. He argued that “if you take the heart out of the statute, the statute’s gone.” Justice Scalia also rejected as “totally unrealistic” the possibility of going through PPACA, provision by provision, to decide which portions to keep and which portions to strike. Other justices expressed similar concerns regarding the practicality of such an approach.

Former U.S. Solicitor General Paul Clement, who argued on behalf of the law’s opponents, stated that all of the major parts of PPACA, including insurance exchanges and the employer mandate, are interrelated with the individual coverage provisions and that it would be difficult to draw the line on which provisions to retain. However, Justice Stephen Breyer listed several provisions in the law that “have nothing to do” with the constitutionality of the individual mandate, and Chief Justice John Roberts pointed out that some provisions were simply reauthorizations of laws that Congress would have passed anyway. Justice Sonia Sotomayor argued that if the individual mandate were stricken, it should be up to Congress to determine how to deal with the rest of the law.

The Court’s main philosophical dilemma appears to be how to determine an appropriate limit on Congress’s power to require that individuals purchase a commercial product or service. Chief Justice John Roberts and Justice Kennedy both observed that upholding the individual mandate would fundamentally change the government’s relationship with individuals.

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