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The ACA: What’s the Big Deal about Severability?

posted on Mon, Feb 6 2012 11:44 am by Corey Davis

ACA and Severability

As we reported in November 2011, the question of whether the Affordable Care Act (ACA) is constitutional has reached the Supreme Court. The Court will decide four different issues raised by the ACA. Lawyers from both sides will argue before the Justices over three days in late March and a decision is expected by the end of June.

In the Supreme Court, before the lawyers for each side meet in the courtroom, they are required to submit written briefs outlining the arguments they intend to make in the case. The Court often permits people and organizations other than the parties to submit written briefs as well. These amicus or “friend of the court” briefs can be useful to bring to the Court’s attention information that is relevant to the case but may not be covered by the parties.

Although the “individual mandate,” the requirement that most Americans carry health insurance, has received most of the attention, the issue of “severability” may be just as important, if not more, especially for public health. This issue concerns whether the individual mandate is “severable,” that is, whether, if the Court finds that the individual mandate is unconstitutional, must the Court strike down the entire law? Because the ACA contains a large number of prevention and public health provisions, a finding that the individual mandate is both unconstitutional and non-severable would be disastrous for programs such as the Prevention and Public Health Fund and the Community Transformation Grants.

Over the past two weeks, a number of people and organizations have submitted amicus briefs on both sides of the severability issue. Organizations such as the Competitive Enterprise Institute and the National Restaurant Association claim that the mandate is not severable, while groups such as the AARP and the American Medical Student Association argue that it is. Notably, a large number of public health organizations, including the American Public Health Association, the Public Health Law Center and the Public Health Law Association, joined together to urge the Court to find that the mandate is severable. Their brief, which was also signed by groups such as NALBOH and NACCHO, provides the Court with an overview of the importance of public health and prevention to the health, welfare and security of the country as well as a brief list of the many important public health provisions contained in the ACA.

A finding that the mandate is unconstitutional and not severable would be a huge step back for public health. We will continue to keep you informed regarding this important case as it moves forward.

Corey Davis

This information was developed by Corey Davis, staff attorney, for the Network for Public Health Law – Southeastern Region at National Health Law Program.

The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this document does not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.

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