The Supreme Court arguments on the Patient Protection and Affordable Care Act (PPACA) concluded Wednesday. With the first two days dedicated to arguments on whether the case can be heard and on the constitutionality of the individual mandate, Wednesday was devoted to the Medicaid expansion’s constitutionality and whether PPACA should be struck down in whole or just part if portions are deemed unconstitutional (known as severability).
On the Medicaid expansion, the 26 states have a hard task of convincing justices because PPACA calls for funding the expansion at 100 percent initially and later 90 to 95 percent. However, some conservative justices were concerned that the federal government could coerce states to expand by somehow withholding funds and support for the state’s entire Medicaid program. Proponents argued there is nothing in the law that allows this.
On the issue of severability, some legal scholars argue that a decision should rest on whether a provision can logically stand on its own and meets the original intent of Congress. The federal government argued that some aspects would not work if the mandate was struck down (e.g., guaranteed issue, barring pre-existing condition exclusions), but otherwise the other parts of the law should stand. Indeed, even House Republicans have included hundreds of billions of PPACA changes in their recent budget proposal.
Opponents say if the core is struck down, the whole bill should go. Interestingly, Justice Kennedy and a few other conservative justices are arguing that a complete strike down is less judicial activism than picking and choosing what might stand on its own. The point: Congress as the policy body should relook at the constitutional provisions and decide. Why should nine unelected justices make those decisions?
With the arguments concluded, where do we stand?
It is probably fair to say that there is consensus on ruling on the merits of the case now and not later.
As for the mandate, Medicaid expansion, and severability, Chief Justices Roberts and Kennedy appear to be the decision-makers. Expect a 5-4 decision. If the two are together the mandate goes down. If they split, the mandate is upheld. It is likely that if the mandate is struck down, Roberts and Kennedy will fall on the side of returning everything to Congress. But the Court has surprised everyone before.