Policy Documents

The Devil in the Obamacare Details

Maureen Martin –

Many legal scholars who oppose Obamacare say there’s an angel—not a devil—in the details of this law because it lacks what’s called a “severability clause.”

These clauses, commonly included in legislation, provide that if part of a law is found unconstitutional, that part can be severed and the rest remains valid.

In March, the State of Virginia filed suit challenging the constitutionality of the individual mandate portion of the bill—the provision penalizing Americans who fail to buy private health insurance. Virginia did not challenge the rest of the new law, which contains no severability clause.

Last week, a Virginia judge ruled Virginia’s constitutional challenge to the individual mandate can proceed, rejecting the U.S. Department of Justice’s position the case is not legally viable. Because there is no severability clause, scholars greeted the ruling with glee, saying if the individual mandate fails, the entire law fails as well.

Not so fast.

Even if the case goes to the Supreme Court and the Court holds the individual mandate unconstitutional, the Court might not use the lack of a severability clause to invalidate the entire law.

On numerous occasions the Court has “severed” an unconstitutional provision from legislation even though Congress omitted a severability clause. In 1996, for example, the Court held: “Although the 1992 Act contains no express ‘severability clause,’ we can find the Act's ‘severability’ intention in its structure and purpose.”

It continued: “[A] court should refrain from invalidating more of the statute than is necessary. . . .  ‘[Whenever] an act of Congress contains unobjectionable provisions separable from those found to be unconstitutional, it is the duty of this court to so declare, and to maintain the act in so far as it is valid.’”

There is no question portions of the act relating to the individual mandate, such as coverage of preexisting conditions and guaranteed renewability, would fail if the individual mandate is held to be unconstitutional. Premium payments paid by individuals newly covered by private insurance will enable private insurers to fund the expanded coverage required by Obamacare. So these provisions would likely be severed if the individual mandate is found unconstitutional.

But about 87 percent of the bill’s pages have nothing to do with private insurance and everything to do with public programs such as Medicare and Medicaid.

Some examples on Medicaid include universal coverage, coverage for former foster children, more funding for the Children’s Health Insurance Program, coverage for freestanding birthing centers, funds for family planning, funding of state aging and disability resource centers. It goes on and on.

Then there’s Medicare. It, too, is subject to additional regulations: reporting obligations on quality for physicians, hospitals, inpatient rehabilitation, and hospices; value-based payments for physicians and hospitals; other quality measurement programs; physician and hospital payment rules; and many provisions relating to Medicare services in rural areas. This is only a partial list. The law contains hundreds of pages on Medicare.

The law also includes extensive provisions on state public health activities, such as disease prevention, public education, and prevention of dental health issues.

Health care workforce issues are extensively covered, including workforce assessment and training, methods to increase the number of workers, student loan funding, workforce diversity training, and federal oversight of nursing and physician education.

None of these features have anything to do with the individual mandate. Under the Supreme Court’s existing precedent, they would likely not be severed by the Court. So there are still lots of devils in the details.

Maureen Martin, J.D. (mmartin@heartland.org) is senior fellow for legal affairs at The Heartland Institute.