Mandate, Severability and Standing

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The Supreme Court has agreed to combine three cases (National Federation of Independent Business v Sebelius, No 11-393; US Department of Health and Human Services v Florida, No 11-398; and Florida v Department of Health and Human Services, No 11-400) to review for ruling on the legal legitimacy of the Patient Protection and Affordable Care Act.

The three issues the Justices feel in need of clarification include the primary question of whether Congress overreached its authority in mandating that, just by being alive, one must purchase health insurance. Also included are the issues of severability (if the mandate is struck down, can the rest of the law be valid?) and standing (can any challenge be brought before the bar before they are in effect – i.e., before there are actual victims of the law). Oral arguments have been slated for March, and an unprecedented 5½ hours have been set aside to hear them. In the normal course of events, a ruling could be expected in June or July, probably after a Republican nominee has been virtually anointed.

Paul Heldman, senior analyst at Potomac Research Group, which provides Washington policy research for the investment community, said he still leaned toward the view that the law’s requirement that individuals buy insurance will be upheld. “We continue to have a high level of conviction that the Supreme Court will leave much of the health reform law standing, even if finds unconstitutional the requirement that individuals buy coverage,” he wrote in a recent note. I would like to see that entire note, because while I agree with him on the severability question (SCOTUS will likely leave in tact any parts of ObamaCare not overturned), but, as an advisory to investors, should have included something about the economic unfeasibility of the Act in the absence of universal participation – the mandate accounts for fully half of the admitted cost of the bill (which will undoubtedly not be close to the actual cost. Laws always cost more than their authors admit). As a legal matter, the Court may well infer severability, but as a practical matter, it cannot survive without its major funding mechanism.

The administration has pointed to other landmark laws, such as the Social Security Act, the Civil Rights Act and the Voting Rights Act, all of which enjoy a degree of universality and all of which have survived similar legal challenges. Of these, two rest on precursor acts (Social Security Act – working, and Voting Rights Act – voting), leaving the Civil Rights Act as the most congruent to the question of the mandate – one’s involuntary and irreversible ethnicity is transparent to the applicability of the Equal Protection Clause of the Constitution. It’s black letter law. The mandate is only ambiguously addressed by the Commerce Clause, and the questions raised involve a wider concern regarding the resulting freeing Congress of any limitations whatsoever.

“Let’s go right to what is your most difficult problem,” Judge Laurence H Silberman told a lawyer at an argument in September before the US Court of Appeals for the DC Circuit. “What limiting principle do you articulate? If Congress may require people to purchase health insurance, he asked, what else can it force them to buy? Where do you draw the line? Would it be unconstitutional to require people to buy broccoli?”

“No,” said the lawyer, Beth S Brinkmann. “It depends.”

“Could people making more than $500,000 be required to buy cars from General Motors to keep it in business?”

“I would have to know much more about the empirical findings,” she replied.

Thus is the arrogance of government in assuming that its agenda is more important than the petty concerns of its people or the requirements of law. This applies to government generally, regardless of which party occupies the White House.

Whether anyone has standing to challenge an aspect of law that has no actual victims is an interesting one. Like most issues swirling around the Affordable Care Act, there is a degree of ambiguity around this one, too.

It is Court tradition (but not a matter of law) not to grant certiorari to issues not yet in play – they deny standing to complainants who have not actually been harmed by the law they protest. The complication is one of severability, as parts of the law are already in effect, and if there is no severability and some aspect is, in fact unconstitutional, then the whole law – including that which is already in force – is unconstitutional.

The questions in play here have nothing to do with healthcare. Just as in case law, where the trial is about the behavior of plaintiff and accused, and the appeal is about the behavior of the lawyers and the judge, at the Supreme Court level, the case is about the behavior of government. This is that over which the Supreme Court has authority.


See James Vicini, Supreme Court to take on Obama healthcare law, Reuters, November 14 2011.

See Adam Liptak, Health Law Puts Focus on Limits of Federal Power, in New York Times, November 14 2011, p. A1.

9 thoughts on “Mandate, Severability and Standing

  1. You’re welcome. However, I think I need to add one comment just for the heck of it in order to stir the pot:

    I’d say Ms. Brinkmann’s skills as a litigator are roughly the equivalent of Herman Cain’s skills as a politician.

    “The world does not suffer fools gladly”….Ha hahaha!

  2. PS: I used Ms Brinkmann’s exchange with Judge Silberman because I thought it showed something akin to desperation on the part of the government in these trials. Interestingly, the most commonly occurring argument, at all levels of all courts, has been (and I paraphrase), “The mandate is necessary to the efficacious implementation of healthcare reform. It’s a package.” Which, of course, argues against severability (oops); and, of course, is silent on the legality of the mandate, necessary though they think it is. I will be interested to see if that argument is forwarded during orals, and if it is, what questions from the Justices that will inspire.

  3. We will both be following the oral arguments put forth by the opposing sides closely.

    I saw an interview with the lawyer who is going to be giving the oral argument for the “States vs” side on Fox News. He is very competent and impressive IMO. I hope the Admin. can come up with someone equally impressive to argue their position. Ms. Brinkmann was obviously the worst of the worst! I’m sure that whoever represents the Admin. won’t be that incompetent.

    There obviously were several efficacious arguments made by competent litigators in the lower courts or none of those courts would have ruled in the Administration’s favor. I’m sure one of them or someone equally as impressive will be picked to make the argument. Have you heard yet who has been picked to represent that side? I haven’t.

  4. I haven’t heard who will represent the government before the Supreme Court, but I would assume it will be Solicitor General Donald B Verrilli Jr (or, if a team, headed by General Verrilli).  Also, not all federal attorneys are licensed to practice before the Supreme Court, so some of the lower court litigators may not be able to argue this case.  

  5. Thanks. I just did a websearch on Verilli to find out something about him. Not much there since he was just confirmed last summer to replace Elena Kagan. Not sure how effective he’ll be in arguing this case since nothing that he has argued before the court to date would seem to be very relevant to whether or not the individual mandate violates the commerce clause.

    I hope if he leads the team of litigators he at least has one of the other lawyers who argued successfully in the lower courts as his sidekick.

  6. He’s supposed to be the government’s top litigator, so I’m sure he’ll do fine. I’m equally sure that some of the winning litigators from the lower courts will be on the team – but if they’re not licensed to argue before the High Court, they can’t be second seat, although they can be at counsel table and consult on strategy, etc.

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