People focus on the Obamacare cases in the national spotlight, such as the multistate case out of Florida or Ken Cuccinelli’s Virginia lawsuit. But there are more than 30 cases scattered across the nation, and one in Pennsylvania is the first to take a middle course.
As I’ve written previously, the brass ring in Obamacare is not the individual mandate—it’s severability. The individual mandate is one section (§ 1501) in a 450-section statute. It is the single most important section in Obamacare, but if you only strike down that section you leave 99 percent of Obamacare in effect, killing jobs and driving millions into government-run healthcare.
When a federal court strikes down a law’s provision as unconstitutional, it then determines whether that provision can be separated from the rest of the statute to save the remaining sections. Severability doctrine is comprised of the tests a court applies to make this assessment.
Usually a court only strikes down the unconstitutional provision. On rare occasions the court strikes down the entire statute.
But there’s also a middle ground. If a court holds that certain parts of a statute are so tied to the invalid provision that they can’t be separated, the statute is said to be partially severable.
Until this week, all the courts to strike down Obamacare’s individual mandate either struck down only § 1501, or else they struck down the entire law.
Now Judge Christopher Conner of the U.S. District Court for the Middle District of Pennsylvania has taken the partial severability route. In the case Goudy-Bachman v. HHS, Judge Conner held that two key provisions of Obamacare cannot be separated from the mandate.
They are § 1201 and part of § 1001.
One requires that insurance companies cannot deny you coverage for preexisting conditions. (This means you can stay uninsured and wait until you find out you have a very expensive medical condition, then demand to be given an insurance policy to pay for it.)
The other is the community-rating provision, which requires that insurance companies cannot modify your monthly premium based upon anything about you. (Such as the fact that you smoke heavily or refuse to wear a helmet when you ride a motorcycle.)
Absent an individual mandate, these provisions will cost providers billions of dollars every year, and the Obama administration has argued in court that the law cannot be implemented effectively without it.
This ruling, that two other key provisions cannot be separated from the individual mandate, blows a big hole through Obamacare. It also highlights the range of options available to the Supreme Court when this law reaches them.
Examiner legal contributor Ken Klukowski covers the U.S. Supreme Court and legal issues.
