Healthcare Reform and the Courts, Part 2

The Florida Court agreed with the states on both counts. Basically, the court said that the government cannot compel people to engage in an activity like buying health insurance. That authority is left to the states. And they agreed that this portion of the Patient Protection and Affordable Care Act was not severable and, therefore, the whole thing is unconstitutional.|

This is the second article in a 3-part series on Healthcare Reform and the Courts. Preceding and subsequent articles in this series can be found here: Part 1 and Part 3. How The Florida Court Ruled The Florida Court agreed with the states on both counts. Basically, the court said that the government cannot compel people to engage in an activity like buying health insurance. That authority is left to the states. And they agreed that this portion of the Patient Protection and Affordable Care Act was not severable and, therefore, the whole thing is unconstitutional. The court's rationale here was interesting, I thought. The reality is that Congress passes a lot of laws that do not include a severability clause. And yet many of those laws remain in place after the court has ruled against certain provisions of them because severability is implied. The courts, not wanting to thwart the will of the people via their elected representatives know that throwing out every single law because of problems with certain sections would create a logjam in government and nothing would get done. So the courts prefer not to do this. But judges don't automatically assume severability. They go back to and research any documentation they can get their hands on to determine whether or not lawmakers intended to include severability in the legislation. And that's just what the Florida judge did with the Patient Protection and Affordable Care Act. So what did he find? He found that a prior draft of the Patient Protection and Affordable Care Act did include a severability clause which meant that for some reason, someone pulled it out when the final version was reported out of Congress — possible evidence that Congress did not mean for the Patient Protection and Affordable Care Act to include severability. Additionally, the judge did more homework and then came across news clips of the President of the United States talking about the importance of the individual mandate and saying that without the mandate, everything else including the provisions that mandate carriers to provide guarantee issue coverage with no waiting period on preexisting conditions would collapse. We can't force carriers to do this unless everyone is covered, he said. Congress pulled the severability clause from a prior draft of the law and the President was publicly quoted as saying that without the mandate, other aspects of the law won't work. So the judge concluded that legislators felt that you couldn't have one without the other. And that's why the Florida judge cited in his reasoning that the ruling that the individual mandate is an overreach and, therefore, the whole thing must go down with it. With the judge ruling against the feds and striking down the Patient Protection and Affordable Care Act, the feds appealed to the District Court of Appeals. The District Court of Appeals Ruling Three judges were involved in the ruling of the district court — two Democrats and one Republican. Basically, one of the Democrats and a Republican agreed with the Florida judge on the mandate. And they carried the argument one step further. If the Patient Protection and Affordable Care Act's individual mandate is left to stand, then where do the feds stop? If a person's coverage status affects the financial health of the overall healthcare delivery system, then why not compel him to workout, eat better, etc, etc, etc? Not stopping the mandate opens the door for the federal government to impose all kinds of requirements on citizens that the government deems beneficial to overall society. Where does federal authority stop? Allowing the individual mandate to stand would be tantamount to opening a giant door for additional federal influence over states' rights. But the appeals court disagreed with the Florida judge over the severability clause. The court said that standard protocol within the House of Representatives assumes that most legislation is severable and that a specific clause isn't always necessary. The court was sensitive to the impact on the insurance industry if carriers are required to take all applicants with no waiting periods on preexisting conditions with a mandate. But the judges didn't think this was all that important given that most of the people the mandate would apply to already have coverage. Those who don't have coverage now, they said, are those who would be eligible for Medicaid and individual subsidies. So if the bulk of the population the mandate would apply to is already insured, then the mandate is not really that important (they did not address the scenario where people may opt to drop their coverage if they know they can get it anytime when they really need it). So now we have a bit of a disagreement between the Florida court and the appeals court — not to mention all the other Patient Protection and Affordable Care Act-related lawsuits that are being litigated in other courts throughout the county. Conflicting views and directives from a law as expansive as the Patient Protection and Affordable Care Act is not conducive to harmonious execution of the provisions of that law. Given the two different rulings, what is a given state to do? Do you follow through on the mandate or not? Do you begin building the exchanges or not? You have one court that says no and another that says kind of. It is for these reasons and many others that people believe the next stop is the Supreme Court.

John Nelson

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John Nelson

John Nelson has long been a champion of legislative and educational efforts in the health insurance industry. He is a Chief Executive Officer of Warner Pacific Insurance Services, one of the nation’s largest health insurance general agencies serving over 35,000 small employers with over $1.5 billion of inforce premium.

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