Severability may be key word in Washington, D.C.
No member of Congress in his or her right mind is going to allow 20 million people covered by Medicaid to lose their health insurance. And each and every one of the lawmakers can visualize the attack ads that would result from a wave of insurance company rejections of coverage applications from people with pre-existing conditions.
That’s the first thing you ought to keep in mind regarding the scare over Medicaid and pre-existing conditions and a December ruling by a federal judge in Texas.
What’s No. 2, you ask? Memorize this word: severability.
While most people seemed focused on the so-called government “shutdown,” U.S. Sen. Joe Manchin was looking with justifiable alarm at the Texas court ruling. It involved the Affordable Care Act, or Obamacare.
Manchin worries that a December ruling by U.S. District Court Judge Reed O’Connor in Texas may throw the baby out with the bathwater regarding the ACA. O’Connor’s order came in a lawsuit filed by 20 state attorneys general and governors, along with two individuals. West Virginia Attorney General Patrick Morrisey is among the plaintiffs seeking to have the ACA ruled unconstitutional.
Morrisey’s participation cost him severely in last fall’s election, in which he was seeking to unseat Manchin. The incumbent warned that if the lawsuit succeeded, as many as 800,000 West Virginians with pre-existing medical conditions could lose their health insurance.
At the time, my opinion was that Manchin’s concern was exaggerated, in part because of the political blowback Republicans would suffer if that many people, along with tens of millions of other Americans with pre-existing conditions, lost their health insurance.
Then O’Connor declared the ACA unconstitutional, based on the so-called individual mandate.
Huh? Yes, that individual mandate, the section of the original ACA that fined Americans who refused to buy government-approved health insurance.
But, you say, Congress eliminated the mandate or, rather, the fine for non-compliance. And in December, O’Connor ruled the ACA is unconstitutional because — wait for it — the Supreme Court previously had ruled the mandate was acceptable only because the fines could be viewed as taxes. Without the fine/tax, the mandate is unconstitutional and thus, so is the entire ACA, O’Connor decided.
It gets stranger. At least O’Connor did not order the ACA be scrapped immediately. His decision will be appealed to the U.S. Fifth Circuit Court of Appeals, which handles Texas, Louisiana and Mississippi.
With any luck, O’Connor will be overruled there because of that word — severability.
These days, most laws at both the state and federal levels include clauses stating that if one provision is ruled unconstitutional, the rest of the law is “severed” and remains in effect.
But O’Connor rejected that. The whole ACA, not just the individual mandate section, has to go, he says.
So, Manchin is right to be concerned. If the whole ACA is scrapped, Medicaid expansion covering about 20 million people goes with it. So do some protections for those with pre-existing conditions. That prompted Manchin this week to introduce a resolution, with which Democrat leaders in the Senate agree, for that body to intervene as an interested party in the lawsuit.
President Donald Trump’s executive branch is not intervening, simply because Trump wants the ACA gone.
Trump ought to reconsider and allow the Justice Department to become part of the appeal, simply because of the severability issue. If O’Connor’s ruling stands, it could jeopardize any number of other federal laws.
Supreme Court justices, in a case they decided earlier last year, ordered that federal courts consider congressional intent in deciding severability questions. Clearly, no one in Congress wants the ACA dumped immediately. There’s no replacement ready to be put in its place.
So severability, not immigration, may be the word of the year in Washington. Stay tuned.
Mike Myer can be reached at email@example.com.