Severability & Obamacare

by Cody Hensarling

With the recent decision of the Supreme Court to hear legal challenges to PPACA (the Patient Protection and Affordable Care Act, also known as Obamacare), there is a lot of legal jargon that is slipping into the public consciousness. While a lack of knowledge of most of these terms is not a barrier to a working understanding of the legal case against Obamacare, there are a few notable exceptions. One such exception is the term “severability”, which I have heard more than a few talking heads flippantly use without an apparent understanding of the meaning of the term. Severability is not a concept that can be ignored, as it is probably the reason for the majority of the uncertainty surrounding PPACA.

What does “severability” mean? Well, in the abstract, it means “capable of being divided or dissociated”. In the context of PPACA, it is most usually used in conjunction with the “individual mandate” (PPACA’s requirement that every US citizen purchase health insurance). So, when a person asks if Obamacare is severable, what they are asking is if the individual mandate can be separated from the rest of the bill. Now, as may already be clear, this is not a normal question to ask about a bill. Normally, bills have severability clauses, which establish that some parts of the bill can stand in the case that the more controversial part(s) of the bill is struck down or repealed. PPACA doesn’t have a severability clause, which was either a major oversight or a stunning degree of faith in the constitutionality of the individual mandate. Bills that have even slightly controversial provisions have severability clauses as a matter of common practice, not to mention bills that are seeking to regulate whole industries through unprecedented mechanisms.

Why does “severability” matter? Assuming that the Supreme Court determines the individual mandate unconstitutional (which they may or may not, and is a topic for another discussion), the immediate question is what remains of PPACA. There have been four different lower court judges who have ruled on the individual mandate, and each one of them had a different ruling on what part of the bill could stand if the individual mandate was gone. These responses ranged from nothing to everything else (including the IPAB, the requirement for the industry to cover individuals with pre-existing conditions, and the creation of state health exchanges), and left little to no ability for the general public to predict the Supreme Court’s interpretation. Frankly, for individuals looking to escape Obamacare’s implementation, how the Supreme Court interprets severability is the major factor behind how complete an escape can occur.

Why is “severability” open to so much interpretation? Put simply, because the courts now have to determine the intent of Congress. Seeing as how Congress cannot generally determine the intent of Congress, it’s a tall order. The Supreme Court will potentially be answering the question of not only what parts of Obamacare are constitutional, but what parts of the bill were intended to stand without the individual mandate. The problem with this question is the Obama Administration itself is even admitting that the individual mandate serves as the primary funding mechanism for the rest of the bill. If the primary funding mechanism is struck down, it’s not only a question of what parts of the bill can stand in theory, but a question of what parts of the bill can stand in practice. Certainly, the requiring of offering insurance to individuals with pre-existing conditions becomes either functionally impossible or at the very least, poses an existential threat to the health insurance industry.

Is the individual mandate severable? I have no idea what the courts will decide; all I know is that as concerned citizens, we should be aware of the implications of the quest.

Cody Hensarling is an intern at the Grassroot Institute of Hawaii.