Rule of Law

Supreme Court Oral Arguments on the ACA, Part 2: Medicaid Offers You Can’t Refuse, and Severability

By Robert Lowes

Beginning next Monday, the Supreme Court will conduct 3 days of oral arguments in a landmark case about a landmark law — the Affordable Care Act, the hotly contested blueprint for overhauling the nation’s healthcare system, or lack of a system. The first day’s arguments could be described as precautionary — dotting legal “i’s,” so to speak. They center on whether the high court can review the ACA’s constitutionality this year, or whether it must wait until after the law’s mandate for Americans to obtain health insurance coverage takes effect in 2014.


Elizabeth Wydra, chief counsel for the Constitutional Accountability Center, a progressive think‐tank and law firm in Washington, DC, believes the Obama administration enjoys the upper hand on the severability issue in the Supreme Court case. “There’s a strong presumption in the court that congressional arguments are constitutional,” said Wydra, echoing Farr. “It’s not the court’s business to rewrite legislation. “If the court struck down the mandate, it would limit the impact on the rest of the law,” Wydra predicted.

A Case About Congressional Power, Not Healthcare

During the oral arguments on severability, Wydra expects the Supreme Court justices to question the parties carefully about how the ACA is structured and how it is intended to work. However, the judges
will have more than healthcare policy on their minds. The questions “are about understanding the law and identifying what is severable rather than judging its wisdom,” said Wydra.