Seven justices agreed that judges can block just part of a law,
even if the law contains no severability provision.
A new U.S. Supreme Court ruling may increase
the odds that most of the Affordable Care Act (ACA) will still intact, even if
the court declares the individual health coverage mandate provision to be
unconstitutional.
The court raised that possibility in a new
ruling on Barr v. American Association of Political Consultants Inc. (AAPC)
(Case Number 19-631), a case that deals with whether robocall systems trying to
collect amounts owed to the Internal Revenue Service and other federal agencies
can have more access to people’s cell phones than robocall systems working for
political parties.
The federal Telephone Consumer Protection Act
(TCPA) normally restricts organizations’ ability to use robocall systems to
call people’s cell phones. A 2015 TCPA amendment would have created an
exception for robocall systems seeking to collect debts owed to or guaranteed
by the United States.
The court held Monday, in a 7-2 decision, that
the TCPA amendment is unconstitutional, under the First Amendment of the U.S.
Constitution, because it gives debt collection speech a higher priority than
political speech.
Resources
·
An
article about how the Supreme Court justices talked about severability in
another recent ruling is available here.
For agents, brokers and others interested in
the ACA, the key part of the majority opinion in the Barr v. AAPC case deals
with what happens when the federal courts find that one part of a long federal
law is unconstitutional, or otherwise invalid.
The Affordable Care
Act Severability Fight
The ACA is made of up two separate federal
statutes: the Patient Protection and Affordable Care Act of 2010 (PPACA) and
the Health Care and Education Reconciliation Act of 2010 (HCERA).
One part of PPACA, the “individual shared
responsibility” provision, requires many people to have what the federal
government classifies as a minimum level of major medical health coverage or
else pay a penalty.
Other parts of PPACA have:
·
Required many
employers to provide a minimum level of health coverage, or else pay a penalty.
·
Restricted health
insurers’ ability to use medical underwriting.
·
Set minimum major
medical insurance benefits standards.
·
Set up the ACA health
insurance exchange program.
·
Created subsidy
programs meant to protect health insurers against the effects of all of the new
rules, including the ACA tax credit subsidy program for ACA exchange plan
coverage.
·
Created the Summary of
Benefits and Coverage “milk carton labels” for major medical insurance
policies.
·
Provided funding for
the ACA Medicaid expansion program, medical professional education programs,
pandemic preparedness programs, and programs meant to help health care
providers understand how to treat older patients.
·
Required the
government to do more to help older people and young people with disabilities
stay in the community.
·
Phased out the
Medicare Part D prescription drug coverage “donut hole,” or the gap between
when routine benefits end and catastrophic benefits start.
ACA supporters argued, in a case the U.S.
Supreme Court decided in 2012, that the individual mandate penalty was
constitutional and was essential to the ACA.
The court ruled that the individual mandate
penalty was a tax and that, therefore, plaintiffs were unable to challenge the
constitutionality of the mandate provision, due to a federal law that keep
people from suing to block new federal taxes.
Congress set the individual penalty at zero in
2017.
Officials in Texas and other states that
generally oppose the ACA have argued that, now that the penalty has been set at
zero, the provision is no longer a tax and is simply an unconstitutional
requirement for people to buy a commercial product.
Texas and its allies, including the U.S.
federal government, have further argued that, because the ACA contains no
severability clause, or provision letting the rest of the law stay intact if
part goes away, killing the individual mandate provision should kill all of
PPACA.
Some ACA supporters have argued that the
individual mandate penalty provision is constitutional, because it’s still a
tax, even if the penalty rate has been set at zero.
ACA supporters have also argued that, even if
the court finds the mandate provision and some or all other individual major
medical insurance provisions to be unconstitutional, it should find a way to
cut those provisions from the Medicaid expansion sections, the Medicare Part D
donut hole sections, the medical education funding provisions, and the
other, much less controversial provisions.
Kavanaugh’s Opinion
The justices have written several different
concurring and dissenting opinions in connection with the case.
In the opinion that comes first, which makes
it clear that the 2015 TCPA amendment favoring tax debt collecting robocallers
is unconstitutional, Justice Brett Kavanaugh writes directly about how federal
judges should proceed when part of a federal law is unconstitutional, and the
law contains no severability clause.
“When enacting a
law, Congress often does not include either a severability clause or a
nonseverability clause. In those cases, it is sometimes said that courts
applying severability doctrine should search for other indicia of congressional
intent.… But experience shows that this formulation often leads to an analytical
dead end. That is because courts are not well equipped to imaginatively
reconstruct a prior Congress’s hypothetical intent.…
“The Court’s cases
have instead developed a strong presumption of severability. The Court presumes
that an unconstitutional provision in a law is severable from the remainder of
the law or statute.… Apart from some isolated detours mostly in the late 1800s
and early 1900s, the Court’s remedial preference after finding a provision of a
federal law unconstitutional has been to salvage rather than destroy the rest
of the law passed by Congress and signed by the President.
“The Court’s
precedents reflect a decisive preference for surgical severance rather than
wholesale destruction, even in the absence of a severability clause.…
Constitutional litigation is not a game of gotcha against Congress, where
litigants can ride a discrete constitutional flaw in a statute to take down the
whole, otherwise constitutional statute.… Before severing a provision and
leaving the remainder of a law intact, the Court must determine that the
remainder of the statute is ‘capable of functioning independently’ and thus
would be ‘fully operative’ as a law.… But it is fairly unusual for the
remainder of a law not to be operative.”
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