Tasty!

More than a year ago, U.S. District Judge Roger Vinson in Pensacola, Florida argued that the Commerce Clause of the U.S. Constitution gives Congress no more right to order residents to own health insurance than it does to require them to buy broccoli.  This year, we will find out whether or not the U.S. Supreme Court agrees with Judge Vinson.

The High Court Justices could choose to sort out the broccoli case  in a number of ways, instead of simply striking down or upholding the law.  But many believe, and the Justices may agree, that other provisions of the ACA cannot be severed from the individual mandate provision.

This past week, a professional organization to which I belong, the American Academy of Actuaries, reiterated its position on severability of the individual mandate from other provisions of the ACA.

In its amicus brief, the Academy informed the Court that, "However the Court rules on the constitutionality of the individual-mandate provision ... the guaranteed-issue and community-rating provisions should stand or fall together with it." This judgment stems from the fundamental actuarial perspective that, "... in order for the community-rating and guaranteed-issue provisions in the Act to operate as intended, they must be paired with an effective mechanism to ensure broad participation in the health-insurance market, such as an individual mandate."

The Academy is not taking a position on the law itself, on the constitutionality of the mandate, or if the mandate should be severable from any provisions in the law other than those related to guaranteed-issue and community-rating.

So how did the March hearings go?  Well, nothing has been decided but read on to make your own judgment.

On day one, Robert Long, a lawyer representing "friends of the court," made his argument that the Tax Injunction Act forbids the federal courts from hearing challenges to new taxes -- including the penalties individuals might have to pay if they failed to buy minimum coverage as required by ACA -- until the taxes actually have taken effect.  But Donald Verrilli Jr., the solicitor general for the Obama administration, and Greg Katsas, who represented the National Federation for Independent Business, Nashville, Tenn., and the 26 states that are trying to overturn ACA, argued that the federal courts already have jurisdiction over the constitutionality of the individual coverage mandate penalty. 

Katsas said the Supreme Court can rule on the challenge because opponents of the law are separating the challenge of the coverage ownership requirement from the penalty provision.  Chief Justice John Roberts questioned that line of reasoning, saying "it seems very artificial to separate the punishment from the crime."

On day two, interesting comments were made by Associate Justice Anthony Kennedy, who may be the likeliest candidate to provide the "fifth vote" that ACA supporters need to keep the individual mandate alive. 

Toward the end of oral arguments, Kennedy said to U.S. Solicitor General Donald Verrilli Jr. that he finds the implications of the individual mandate "concerning" because "it requires the individual to do an affirmative act."

"In the law of torts our tradition, our law, has been that you don't have the duty to rescue someone if that person is in danger," Kennedy said. "The blind man is walking in front of a car and you do not have a duty to stop him absent some relation between you.  And there is some severe moral criticisms of that rule, but that's generally the rule.  And here the government is saying that the federal government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the federal government to the individual in the very fundamental way."

Kennedy went on to ask, "Was the government's argument this -- and maybe I won't state it accurately -- it is true that the noninsured young adult is, in fact, an actuarial reality insofar as our allocation of health services, insofar as the way health insurance companies figure risks? That person who is sitting at home in his or her living room doing nothing is an actuarial reality that can and must be measured for health service purposes; is that their argument?"

Kennedy also said regarding noninsured young adults that, "They are in the market in the sense that they are creating a risk that the market must account for."

On day three, Kennedy told Edwin Kneedler, a lawyer representing the Obama administration, that severing the individual mandate from the rest of the PPACA could be a more extreme exercise of judicial power than knocking down the whole act.  "We would be exercising the judicial power if one act was -- one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended," Kennedy said.  "By reason of this court, we would have a new regime that Congress did not provide for, did not consider." 

So now, with the very real possibility of the individual mandate being struck down by the Supreme Court as unconstitutional, the question then becomes what else would go with the mandate?  Will the High Court conclude that some or all of the other provisions related to the mandate must go too?