Congress killed off a key penalty in the 2010 health care law last year but left the rest of the law intact — and that might prove pivotal to a lawsuit in which the Justice Department and 20 Republican-led states argue that the law’s other major provisions must now be struck down.
That’s because the federal courts will look at what Congress intended to accomplish regardless of what individual lawmakers wanted to do, according to a group of five law professors with deep experience in litigation over the health care law.
Congress used the 2017 tax overhaul to nix the penalty for most Americans who don’t get health coverage starting next year while allowing other provisions to continue, such as those preventing insurance companies from denying coverage or charging more because of a consumer’s pre-existing condition.
“All that matters here is that Congress eliminated the individual mandate penalties while leaving the rest of the statute intact,” the law professors wrote.
Texas and 19 other states say in their lawsuit that getting rid of the penalty makes the mandate to buy insurance unconstitutional — and the elimination of that central provision in turn means the remainder of the 2010 law “must also fall.” They are seeking a preliminary injunction to stop the law.
The Justice Department has declined to defend the Obama administration’s landmark law. The government argued that if the mandate falls, so must provisions that ban insurers from denying coverage or charging more because of a consumer’s pre-existing condition.
The idea behind the DOJ and states’ arguments is the legal concept known as severability. That means when one part of a law is found unconstitutional, courts look at whether the rest of the law should be struck down as well.
On Capitol Hill last week, the DOJ position drew rebukes from lawmakers such as Sen. Lamar Alexander, chairman of the Health, Education, Labor and Pensions Committee, who called the Trump administration’s argument “as far-fetched as any I’ve heard.”
Jonathan Adler, a Case Western Reserve University law professor who previously called parts of the law unconstitutional, said in a blog post, “The DOJ’s approach to severability in this case is unmoored from current doctrine.”
Adler and the experts who filed a brief in the case Thursday argued on opposing sides of previous lawsuits that threatened to strike down the law that went to the Supreme Court. Also signing the brief were Ilya Somin at George Mason University, who also previously argued the law was unconstitutional, and Kevin Walsh at the University of Richmond. Health care law supporters Nicholas Bagley at the University of Michigan and Abbe Gluck at Yale Law School also signed it.
They united to tell the court that DOJ and the states are wrong on severability. “If this set of strange bedfellows can agree on the severability question, that should tell you something,” Adler wrote.
The DOJ argued in the case that Congress believed that the mandate and the two pre-existing coverage provisions were interdependent and necessary to make the law work. The courts now can’t imply that the tax overhaul changed that belief of Congress that the provisions are interdependent, so it follows that the three provisions must fall together, the DOJ argued.
The law professors counter that under current Supreme Court rulings, a court must make its best guess about what Congress would have wanted for the rest of the law if one provision is struck down. But here, the courts did not strike down a provision. Instead, Congress essentially eliminated it and left the rest of the law untouched.
“In such cases, congressional intent is clear — it is embodied in the text and substance of the statutory amendment itself,” the law professors’ brief states. “Under these circumstances, a court’s substitution of its own judgment for that of Congress would be an unlawful usurpation of congressional power and violate basic black-letter principles of severability.”
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