One of the most crucial details of the Democratic push for repeal of the federal health law is whether it would result in the Supreme Court overturning Obamacare once again — at a time when it has appeared that the law is doing more to bring down the uninsured rate than at any time since its passage in 2010.
A vote to repeal the health law would probably prompt the justices to rule that many provisions, like mandatory coverage for people with pre-existing conditions and no lifetime limit on insurance benefits, are constitutionally defective. And that could trigger a second, if less dramatic, showdown over what happens if the majority justices annul parts of the law that the lower courts have said are constitutional — all of which could then lead to Obamacare’s demise.
The potential severability of Obamacare has long been a contentious issue, and has been one of the law’s chief critiques from Republicans.
In 2013, Democrats passed legislation that sought to nullify insurance industry regulations included in the health law that Republicans said could not be separated from its essential provisions. The law was deemed unconstitutional in two cases, with the Supreme Court striking them down.
But both justices that year who had struck down the key Affordable Care Act provision, including Chief Justice John G. Roberts Jr., stated that its provisions could survive.
“Other parts of the law would, for instance, fall if the invalidated provisions were permitted to stand,” Justice Roberts wrote in the case that effectively discarded the Independent Payment Advisory Board, a provision of the law that would have been automatically dissolved with its demise. The other invalidated requirement, Congress’ refusal to penalize employers with 50 or more full-time workers for not offering insurance to those workers, was listed by Justice Roberts as being “plausible severability.”
Just last week, senators expressed concern that Democrats might strip severability from the repeal bill by making it untieable. But one senator, Deb Fischer of Nebraska, suggested this on Twitter on Thursday: “We will have to include basic severability for the #tsoTrumpCare.”
So would S. Daniel Kennedy, a former Republican Senate health care aide now in private practice, believe that severability would survive repeal?
“Absolutely,” he said, but added, “If we’re talking about gutting Obamacare, then definitely not.”
Graham and McCain made the following statements in support of the Democratic repeal bill. Senator Angus King, I-Maine, voted against the repeal bill, citing the severability provision.
Severability is a hallmark of the Affordable Care Act and is a key feature for me in any plan to repeal and replace this disaster.
Nothing in this bill prevents states from creating their own marketplaces, but they cannot block out the federal exchange, plus all its benefits. — Lindsey Graham (@LindseyGrahamSC) October 12, 2018
States that choose to implement a state exchange must provide access to consumers with coverage they can afford and must build the IT infrastructure to provide them with those benefits. https://t.co/cBddDYg8Kk — Lindsey Graham (@LindseyGrahamSC) October 12, 2018