By Peter Suderman
When Judge Henry Hudson struck down the individual mandate last year in response to Virginia’s constitutional challenge to the health care overhaul, he left the rest of the law intact. In ruling on a separate multi-state challenge to the law today, Roger Vinson, a federal judge in Pensacola, Florida, went significantly further by striking down the entire law. Why the difference?
Because the law contained no severability clause, which would have protected the bulk of the law should one part be ruled unconstitutional, Vinson had to decide whether in striking the mandate he should also strike some or all of the rest of the law. Supreme Court guidance on laws lacking severability clauses suggests that judges should generally seek to excise as little of the law as possible, but also to ensure that if there is a remainder, it still serves the law's overall intended objective.
Therein lies the problem for the law’s legal backers. As Vinson notes in his ruling, both the administration, which is implementing the law and defending it in court, and Congress, which wrote and passed the law, have made clear that the individual mandate is an absolutely critical provision. Vinson explains:
The defendants have acknowledged that the individual mandate and the Act’s health insurance reforms, including the guaranteed issue and community rating, will rise or fall together as these reforms “cannot be severed from the [individual mandate].” As explained in my order on the motion to dismiss: “the defendants concede that [the individual mandate] is absolutely necessary for the Act’s insurance market reforms to work as intended. In fact, they refer to it as an ‘essential’ part of the Act at least fourteen times in their motion to dismiss.” [bold added]
Vinson provides several examples, and also notes that Congress itself, in drafting the law's text, put forth a similar claim:
Congress has also acknowledged in the Act itself that the individual mandate is absolutely “essential” to the Act’s overarching goal of expanding the availability of affordable health insurance coverage and protecting individuals with pre-existing medical conditions.
As a result, Vinson concludes that “the individual mandate is indisputably necessary to the Act’s
insurance market reforms, which are, in turn, indisputably necessary to the purpose of the Act.” Essentially, the administration's lawyers argued that the health care law wouldn’t work without the mandate, and Vinson took them at their word.