Oral argument: Wed., Mar. 28, 2012<\/p>\n
Appealed from: United States Court of Appeals for the Eleventh Circuit<\/a> (Aug. 12, 2011)<\/p>\n In 2010, Congress enacted the Patient Protection and Affordable Care Act (“Health Care Act”) and restructured the health insurance market. The Health Care Act contains a provision requiring individuals to carry a minimum amount of health insurance (“minimum coverage provision”). \u00a0The Supreme Court must decide whether the minimum coverage provision is constitutional. If the Court finds the minimum coverage provision unconstitutional, it must then determine whether it can be severed from the Health Care Act or whether the entire Health Care Act must be struck down. Petitioners, Florida, the National Federation of Independent Business, and various individuals contend that the minimum coverage cannot be severed from the Health Care Act because the intended outcome of the entire Health Care Act hinges on the economic effect of the minimum coverage provision. Respondents, the Department of Health and Human Services and Kathleen Sebelius, argue that the minimum coverage provision is severable, and the Health Care Act can function without it. A holding for the Petitioners would strike down the entire Health Care Act, whereas a holding for the Respondents would preserve the constitutional and functional sections.<\/p>\n Congress effected a sweeping and comprehensive restructuring of the Nation’s health-insurance markets in the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010), as amended by the Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152, 124 Stat. 109 (2010) (collectively, the “ACA\u201d or “Act”). But the Eleventh Circuit and the Sixth Circuit now have issued directly conflicting final judgments about the facial constitutionality of the ACA’s mandate that virtually every individual American must obtain health insurance. 26 U.S.C. \u00a7 5000A. Moreover, despite the fact that the mandate is a “requirement” that Congress itself deemed “essential” to the Act’s new insurance regulations, 42 U.S.C. \u00a7 18091(a)(2)(I), the Eleventh Circuit held that the mandate is severable from the remainder of the Act.<\/p>\n The question presented is whether the ACA must be invalidated in its entirety because it is non-severable from the minimum coverage provision that exceeds Congress’ limited and enumerated powers under the Constitution.<\/p>\n top<\/a><\/p>\n If the minimum coverage provision of the Patient Protection and Affordable Care Act is held to be unconstitutional, must the entire Health Care Act be invalidated or is the minimum coverage provision severable from the Health Care Act?<\/p>\n top<\/a><\/p>\n To reform systemic dysfunction in the health insurance industry and extend health care access to 50 million uninsured Americans, Congress passed the Patient Protection and Affordable Care Act<\/a> (\u201cHealth Care Act\u201d). See<\/em><\/strong> Florida v. U.S. Dep\u2019t of Health and Human Services<\/a>, 648 F.3d 1235, 1244, 1246 (11th Cir. 2011).<\/strong> The Health Care Act contains an individual mandate that requires that every individual purchase \u201cminimum essential coverage<\/a>\u201d or pay a tax penalty (\u201cminimum coverage provision\u201d).\u00a0 See id.<\/a><\/em><\/strong> at 1251.<\/strong> The Eleventh Circuit<\/a> found the minimum coverage provision unconstitutional, severed it from the rest of the Health Care Act, and upheld the remainder of the Health Care Act without the minimum coverage provision. See id.<\/a><\/em><\/strong> at 1328.<\/strong> If the Supreme Court<\/a> finds that the minimum coverage provision is unconstitutional, then it will determine whether and how the minimum coverage provision can be severed the Health Care Act.<\/p>\n The question of the severability of the minimum coverage provision first arose after Judge Vinson<\/a> sitting in the United States District Court for the Northern District of Florida<\/a>, struck down the entire Health Care Act holding that the minimum coverage provision was unconstitutional but necessary for the intended operation of the law. See<\/em><\/strong> Florida v. U.S. Dep\u2019t of Health and Human Services<\/a>, 780 F.Supp. 2d 1256, 1299\u20131300 (N. Dist. Fla. 2011).<\/strong> Judge Vinson stated that an unconstitutional provision is only severable if a court determines that the other provisions would function in the way Congress intended despite the severed provision. See id.<\/a><\/em><\/strong> at 1300\u201301.<\/strong> Judge Vinson found that Congress would not have passed the other provisions of the Health Care Act without the minimum coverage provision. See id.<\/a><\/em><\/strong> at 1300\u201301.<\/strong> Judge Vinson based this decision on the fact that, before passing the Health Care Act, Congress removed a severability provision from an earlier draft of the law. See id.<\/a><\/em><\/strong> at 1301.<\/strong> Further, Judge Vinson reasoned that, by removing the severability clause, Congress showed that the Health Care Act needed the minimum coverage provision to function properly. See id.<\/a><\/em><\/strong> <\/strong>Additionally, Judge Vinson found that the defendants, the Department of Health and Human Services<\/a>, conceded that the minimum coverage provision was necessary for implementing the regulatory core of the Act to reform the health insurance industry. See id.<\/a><\/em><\/strong> at 1301\u201302.<\/strong> Against this legislative and litigation background, Judge Vinson held that the minimum coverage provision could not be severed. See id.<\/a><\/em><\/strong> at 1304\u201305.<\/strong><\/p>\n The Eleventh Circuit affirmed the district court\u2019s holding that the minimum coverage provision was unconstitutional; however, the Eleventh Circuit reversed on the issue of severability. See<\/em><\/strong> 648 F.3d 1235<\/a>, 1322, 1328.<\/strong> The Eleventh Circuit found that the minimum coverage provision was severable, and the remainder of the Health Care Act was still valid and functional. See<\/em><\/strong> id.<\/em><\/a> at 1322, 1327.<\/strong> The Eleventh Circuit held that the absence of a severability clause was insufficient to rebut the strong presumption in favor of severability. See id.<\/a><\/em><\/strong> at 1322\u201323.<\/strong><\/p>\n After the Eleventh Circuit\u2019s decision, twenty-six states, two private individuals, and the National Federation of Independent Business, filed two separate petitions asking the Supreme Court to reverse the decision regarding severability and reinstate the wholesale invalidation of the Act. See<\/em><\/strong> Petition for Writ of Certiorari, Twenty-Six States, Florida, et al. v. Dep\u2019t of H&HS, et al.<\/a> (No. 11-400) and Petition for Writ of Certiorari, NFIB, Nat\u2019l Fed\u2019n of Indep. Bus. v. Sebelius, et al<\/a>. (No. 11-393). <\/strong>The Supreme Court granted certiorari and consolidated<\/a> the two petitions. The Court allocated 90 minutes of oral arguments on the issue of severability. See<\/em><\/strong> Writ of Certiorari,<\/a> Nat\u2019l Fed\u2019n of Indep. Bus. v. Sebelius, et al. (No. 11-393) and Florida, et al. v. Dep\u2019t of H&HS, et al. (No. 11-400).<\/strong><\/p>\n top<\/a><\/p>\n Petitioners, the twenty-six states (collectively \u201cthe States\u201d), the National Federation of Independent Business<\/a>, Kaj Ahlburg, and Mary Brown (collectively \u201cNFIB\u201d), argue that the Health Care Act cannot function without the minimum coverage provision. See <\/em><\/strong>Brief for Petitioners<\/strong><\/a>, Twenty-Six States (\u201cState Petitioners\u201d) at <\/strong>35; Brief for Petitioners<\/a>, National Federation of Independent Business (\u201cPrivate Petitioners\u201d) at 36\u201337.<\/strong> In contrast, Respondents Sebelius<\/a> and the Department of Health and Human Services<\/a>, et al., (collectively \u201cHHS\u201d) argue that, even if the minimum coverage provision is unconstitutional, the rest of the Health Care Act, with the exception of the guaranteed issue<\/a> and community-rating<\/a> provisions, can function effectively and should remain valid. See <\/em><\/strong>Brief for Respondents<\/strong><\/a>, U.S. Department of Health and Human Services and Kathleen Sebelius at <\/strong>13\u201314. <\/strong><\/p>\n Separation of Powers<\/em><\/p>\n Several senators contend that the minimum coverage provision cannot be severed from the Health Care Act. See<\/em><\/strong> Brief of Amici Curiae Members of the United States Senate<\/a> in Support of Petitioners<\/strong> at 10.<\/strong> They argue that, without a severability provision in the Health Care Act, judicial severance would interfere with Congressional power to enact complex laws with interrelated goals. See<\/em><\/strong> <\/strong>id.<\/a><\/em><\/strong> in Support of Petitioners<\/strong> at 26\u201327, 38.<\/strong> The NFIB echoes the senators\u2019 concern adding that severing the Health Care Act would construct a law that Congress had not passed. See<\/em><\/strong> Brief for Private Petitioners<\/a> at 30.<\/strong> Together, the Texas Public Policy Foundation<\/a> and the Cato Institute<\/a> assert that the harsh lessons from state-level Health Care reforms that lacked a minimum coverage provision informed the Congressional decision to include the minimum coverage provision as the key to effective reform. See<\/em><\/strong> Brief of Amici Curiae Texas Public Policy Foundation and Cato Institute<\/a> in Support of Petitioners at 29\u201330.<\/strong> The Texas Public Policy Foundation and the Cato Institute argue that disregarding the intricate dependency of the insurance regulations on the minimum coverage provision eviscerates Congress\u2019s role in representing Americans by replacing the deliberations of elected officials with the wisdom of a few tenured justices. See id.<\/a><\/em><\/strong> at 12\u201313, 19.<\/strong><\/p>\n In contrast, California and ten other states contend that invalidating the entire Health Care Act would not only unduly constrain the Congressional power to legislate but also thwart ongoing state-level efforts to comply with the Act. See<\/em><\/strong> Brief of Amici Curiae States of California, et al.,<\/a> in Support of Respondents at 13\u201314.<\/strong> For example, they argue that some states have already relied on the Health Care Act and constructed the infrastructure necessary to implement the Medicare and Medicaid provisions before the minimum coverage provision takes effect. See id.<\/a><\/em><\/strong> at 16\u201318.<\/strong> These states argue that Congress would have prohibited such state preparations had Congress anticipated that a court would invalidate the entire Health Care Act after finding one provision unconstitutional. See id.<\/a><\/em><\/strong> at 23\u201324.<\/strong> \u00a0Invalidating the entire Health Care Act would not only unduly interfere with Congress\u2019s encouragement of state reforms but also needlessly waste state resources and harm the long-term health planning of private individuals. See id.<\/a><\/em><\/strong> <\/strong>\u00a0Highlighting the diversity of the provisions and regulatory aims in the Health Care Act, the American Medical Student Association<\/a> argues that the presumption for severability protects Congress, working as the elected representatives of Americans, against a judicial intrusion into considerations and decisions that are largely political. See<\/em><\/strong> Brief of Amici Curiae American Medical Student Association, et al.,<\/a> in Support of Respondents at 13\u201314.<\/strong><\/p>\n Adverse Selection in the Health Insurance Industry\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 <\/em><\/p>\n The American Civil Rights Union<\/a> (\u201cACRU\u201d) contends that severing the minimum coverage provision from the Act would trigger an unintended \u201cdeath spiral\u201d to health insurance markets by removing incentives for individuals to obtain insurance prior to becoming ill. See<\/em><\/strong> Brief of Amicus Curiae American Civil Rights Union<\/a> in Support of Petitioners at 2, 4\u20135.<\/strong> The ACRU states that the prohibition on varying insurance premiums or denying insurance altogether based on preexisting health conditions requires a minimum coverage provision in order to to spread the cost of Health Care among a large population. See id.<\/a><\/em><\/strong> at 4\u20135.<\/strong> The ACRU argues that severing the minimum coverage provision but permitting the remainder of the Health Care Act to take effect would encourage people to discontinue their health insurance policies until they were in dire need of Health Care; this would then place the increased costs of providing health insurance on an ever-shrinking pool of insured people. See id.<\/a><\/em><\/strong> at 5.<\/strong> Similarly, a group of economists characterize the minimum coverage provision as a necessary subsidy for insurance companies to help offset the harsh economic effects of the Health Care Act. See<\/em><\/strong> Brief of Amici Curiae Economists<\/a> in Support of Petitioners at 8\u20139.<\/strong> According to these economists, without the minimum coverage provision, insurance companies would face at least $715 billion in costs from 2012 through 2021 due to the Health Care Act. See id.<\/a><\/em><\/strong> at 9.<\/strong><\/p>\n American Public Health Association<\/a> (\u201cAPHA\u201d) argues that striking down the entire Health Care Act would prevent Americans from receiving the benefits of Health Care reform that stand independently from the insurance reform. See<\/em><\/strong> Brief of Amici Curiae American Public Health Association, et al.,<\/a> in Support of Respondent at 24. <\/strong>APHA contends that the Health Care Act reforms Health Care far beyond insurance regulations, pointing to the creation of the National Prevention, Health Promotion and Public Health Council<\/a>, the promotion of wellness and disease prevention, and national standards for evaluating diabetes programs. See<\/em><\/strong> <\/strong>id.<\/a><\/em><\/strong> at 20\u201321.<\/strong> Additionally, the American Association of Retired Persons<\/a> (\u201cAARP\u201d) argues that striking down the Health Care Act because of the failure of an insurance provision would rob senior citizens of federal community-based programming, anti-abuse measures, and regulations of nursing homes. See<\/em><\/strong> Brief of Amici Curiae AARP, et al.,<\/a> in Support of Respondent at 28\u201329, 36\u201337.<\/strong> Emphasizing that not all provisions pertain to regulating insurance, Missouri<\/a> adds that striking down all the provisions of the Health Care Act, including break times for nursing mothers, reforms on student loans, and standards for nutrition labeling at restaurants, would deprive Americans of benefits of Health Care reform already in effect. See<\/em><\/strong> Brief of Amicus Curiae Missouri Attorney General<\/a> in Support of Respondent at 4, 5\u20136.<\/strong><\/p>\n top<\/a><\/p>\n The Supreme Court<\/a> will determine whether, if declared unconstitutional, the minimum coverage provision of the Patient Protection and Affordable Care Act<\/a> (\u201cHealth Care Act\u201d) can be severed from the remainder of the Health Care Act. Petitioners, twenty-six states (\u201cStates\u201d), the National Federation of Independent Business<\/a> (\u201cNFIB\u201d), and individuals, argue that the minimum coverage provision is not severable from the rest of the Act and if the minimum coverage provision is unconstitutional<\/a>, the Court should invalidate the entire Health Care Act. See <\/em><\/strong>Brief for Petitioners<\/strong><\/a>, Twenty-Six States (\u201cState Petitioners\u201d) at 59; Brief for Petitioners<\/a>, National Federation of Independent Business (\u201cPrivate Petitioners\u201d) at 61.<\/strong> Respondents, the Department of Health and Human Services<\/a> and Kathleen Sebelius<\/a>, Secretary of Health and Human Services (collectively \u201cHHS\u201d), contend that the States and NFIB do not have standing to put the issue of severability before the Court and also that the minimum coverage provision is severable from the remainder of the Health Care Act excepting the guaranteed-issue and community-rating provisions. See <\/em><\/strong>Brief for Respondents<\/strong><\/a>, U.S. Department of Health and Human Services and Kathleen Sebelius at 26.<\/strong><\/p>\n \u00a0<\/em><\/p>\n Severability<\/em><\/p>\n <\/p>\n NFIB and the States argue that the minimum coverage provision is not severable from the remainder of the Health Care Act. See <\/em><\/strong>Brief for Private Petitioners<\/strong><\/a> at<\/strong> 61; <\/em><\/strong>Brief for State Petitioners<\/strong><\/a> at 59.<\/strong> This is so, NFIB contends, because a court must look to legislative intent to determine severability. See Brief for Private Petitioners<\/a><\/em><\/strong> at 29. <\/strong>NFIB and the States argue that Congress\u2019 focus on the minimum coverage provision during the legislative bargaining process and the central role the provision plays to offset the economic consequences of the rest of the Health Care Act show that the Congressional intent in this case was for the entire Health Care Act to fall or stand on the basis of the constitutionality of the minimum coverage provision. See<\/em><\/strong> id.<\/a><\/em><\/strong> at 36\u201341, 56;<\/strong> <\/em><\/strong>Brief for State Petitioners<\/strong><\/a> at 42\u201346.<\/strong><\/p>\n <\/p>\n HHS agrees that severability is determined by looking at the legislative intent. See <\/em><\/strong>Brief for Respondents<\/strong><\/a> at<\/strong> 42.<\/strong> However, HHS asserts that the fact that many of the provisions of the Health Care Act are already in effect already and functioning show that the remainder of the Health Care Act can make Health Care more affordable independent of the minimum coverage provision. and the legislature intended the entire Health Care Act to become operative regardless of whether the minimum coverage provision was declared unconstitutional. See id.<\/a> <\/em><\/strong>at 13\u201314.<\/strong> HHS argues that the Health Care Act does many other things that are \u201cwholly unrelated\u201d to the minimum coverage provision, like better enforcing drug prices. See id.<\/a><\/em><\/strong> at 30\u201331.<\/strong> HHS concedes that if the minimum coverage provision is unconstitutional, the community-rating and guaranteed-issue provisions cannot function as Congress intended, but the rest of the Health Care Act should be implemented. See id.<\/a><\/em><\/strong> at 26.<\/strong> However, HHS contends that the minimum coverage provision is constitutional and argues that because NFIB and the States do not have standing, the Court should not make a decision on these provisions now. SEVERABILITY, HEALTH CARE, PATIENT PROTECTION AND AFFORDABLE CARE ACT, STANDING, CONGRESSIONAL INTENT<\/h2>\n
Question presented<\/h2>\n
Issue<\/h2>\n
Facts<\/h2>\n
Discussion<\/h2>\n
Analysis<\/h2>\n