February 24, 2012
As the Supreme Court decision on PPACA draws near, it is becoming clear that one of the most important issues will be whether the individual mandate, if ruled unconstitutional, invalidates the entire law or just part of it. The importance of the issue was underscored recently when the attorney appointed by the Supreme Court to review just this “severability” issue filed a brief supporting the Eleventh Circuit Court of Appeals’ decision that the individual mandate alone could be severed from PPACA, leaving all other provisions intact. In contrast, the states that are challenging the law say that the individual mandate cannot be severed from PPACA and that the entire law must fall. On the other hand, the Obama Administration takes a more nuanced view, claiming that the mandate is severable but that PPACA’s guaranteed issue and community rating provisions must also go if the mandate is invalidated because they are integrally tied to the mandate. However, under this approach, all other provisions in PPACA, such as the formation of the state exchanges, would remain. Regardless of how the Court answers this question, any defeat of the individual mandate will require Congress to revisit the health care reform law because the provision is critical to the successful operation of the law.