Tuesday, March 13, 2012

Health Care Briefs: Which Side Are You On?, continued. Et tu, Chamber of Commerce?

The amicus brief filed by the United States Chamber of Commerce on the issue of severability actually presents a highly persuasive argument in support of the constitutionality of the individual mandate in the Affordable Care Act.

The Chamber of Commerce, like several other business interests, oppose the Affordable Care Act not so much because they dislike the individual mandate but because they oppose the employer mandate.  In its brief to the Supreme Court arguing against severability, however, the Chamber of Commerce unintentionally advances powerful arguments that will persuade the Supreme Court to uphold the constitutionality of the individual mandate, and to do so right now.

In this particular brief the Chamber of Commerce contends that the rest of the Affordable Care Act is not "severable" from the individual mandate - that is, if the Court rules that the individual mandate is unconstitutional, it must strike down the entire Affordable Care Act.  The central theme of the Chamber's brief is that the individual mandate is "essential" to the remainder of the Act.  The word "essential" appears 31 times in the brief - the "essential" nature of the individual mandate is a drumbeat, a lietmotif.  A few examples:
The individual mandate “is essential to creating effective health insurance markets ..."                
the adverse selection costs of the guaranteed-issue and community-rating reforms. ...                                                                                                                                                The mandate is “essential” to much more of the Act than the guaranteed-issue and community-rating reforms. ...                                                                             Attempting to decipher how the market for health insurance will respond when one "essential" thread is pulled, in a statute this complicated and vast, is a task that Congress is institutionally much better situated to undertake. ...                                                   The mandate is at least is essential to the operation of the private insurance reforms in Title I of the Act, but there can be no doubt that invalidating the mandate will also affect the remainder of the Act’s operation, and its overarching purpose of expanding coverage to nearly all Americans. ...                                                                        Judicial restraint and a candid recognition of the institutional limitations of the judiciary require rejecting the claim that the “essential” aspect of such a vast and complex regulatory scheme can be severed without consequence ....                                            As demonstrated above, the individual mandate is "essential" to much more than just those two sets of reforms.
The central factual basis supporting the Chamber's argument that the individual mandate is "essential" to the remainder of the Act is that the mandate is absolutely critical for holding down the average cost of health insurance.  As a consequence, the rest of the reforms in the Act such as employer mandates and subsidies for the purchase of health insurance are simply not feasible and would not have been adopted without the individual mandate.  The Chamber states:
Without the individual mandate’s mitigating effects on premiums, the health insurance regulations in the Act would not operate even remotely in the manner Congress intended.
The Chamber argues that without the individual mandate, not only would the guaranteed-issue and guaranteed-coverage provisions be impossible, but because the cost of health insurance would increase so much the subsidies for the purchase of health insurance would have to be much larger; the risk-adjustment provision in the law would not be feasible; the ban on annual coverage limits could not be maintained; the requirements for medical loss ratios could not survive; and the exchanges would not work as Congress intended.
The Chamber's argument amounts to this: the individual mandate is essential to the operation of the entire PPACA.  The unintended consequence of this reasoning is that the individual mandate is "necessary and proper" to the functioning and operation of the entire program of regulation contained in the PPACA.
The Chamber contributes even more to the argument that Congress has the power to enact the individual mandate as part of the PPACA.  It contends that the Act is a broad, comprehensive plan of economic regulation.  The Chamber's brief states:
More important, the PPACA’s sheer complexity, the interdependence of its provisions, and its immense regulatory reach render it unlike any statute at issue in the Court’s modern severability jurisprudence.
Ostensibly the Chamber is arguing that the Court has no experience with "cutting up" a statute like this so it should strike the whole thing down.  The more likely consequence is that the Court will find, as the majority of the justices did in Gonzales v. Raich (2005), that the PPACA is "a lengthy and detailed statute creating a comprehensive framework for regulating" as aspect of the economy.  In Raich the Court upheld the application of the federal Controlled Substances Act to the use of medicinal marijuana.   In his concurring opinion in Raich Justice Scalia explained:
As we implicitly acknowledged in Lopez, however, Congress's authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws directed against economic activities that have a substantial effect on interstate commerce. Though the conduct in Lopez was not economic, the Court nevertheless recognized that it could be regulated as "an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated."
The Chamber's severability brief unintentionally makes a powerful case for upholding the individual mandate under the Necessary and Proper Clause of the Constitution.
And, finally, the Chamber of Commerce emphasizes that America needs an answer regarding the constitutionality of the PPACA as soon as possible:
The uncertainty over which provisions of the PPACA will remain continues to act as an enormous drag on American businesses and the economy. Swift resolution of the severability question is critically important, and this Court should therefore provide a definitive answer now, without the necessity for remand.
Although the Chamber was ostensibly addressing the necessity for a swift decision only as to the issue of severability, the argument applies across the board to all of the issues that have been raised regarding the constitutionality of the law.  The Chamber's argument for speedy and certain resolution of the case may influence the Court to exercise jurisdiction and decide this matter despite the Anti-Injunction Act, a law that prohibits judicial review of tax laws until the taxes are assessed.
We shall see. 
Wilson Huhn teaches Constitutional Law at The University of Akron School of Law. 

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