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ACA's Fate Rests with Court

Margaret Dick Tocknell, for HealthLeaders Media, March 29, 2012

A roller coaster ride of federal court decisions
PPACA began winding through the court system almost immediately after it was passed in March 2010. The first sign of trouble came in August 2010 when a district court in the Eastern District of Virginia declined federal government's motion to dismiss. That set the ACA on a roller coaster ride of federal court decisions with some supporting the individual mandate and others ruling it unconstitutional. In November 2011 the Supreme Court agreed to review the case.

In eight hours of oral arguments over three days five lawyers debated four key issues: jurisdiction, the individual mandate, "severability" (whether the individual mandate severable from PPACA), and the expansion of Medicaid eligibility.

Every question, nuance, and inflection of the justices during oral arguments has been parsed by observers and pundits in an effort to discern how the court might ultimately rule. While that's all very interesting, attorney Thomas Barker says the oral arguments will have little effect on the ultimate outcome. "If their minds aren't already made up then they get made up based on the briefs filed by the parties and maybe the amicus briefs but not what happens at oral arguments."

Barker, who specializes in healthcare and is partner in the Washington, DC office of Foley Hoag, says he began the week thinking that the individual mandate would be upheld, but admits that he's not as sure now.

"I had the sense that the court would be reluctant to choose this case as the limit for how far the commerce clause power can go. I was skeptical that would happen, but Justice Kennedy seemed to put that in play."

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2 comments on "ACA's Fate Rests with Court"


Rob (3/29/2012 at 6:53 PM)
My question is, why are they even debating severability? If I understand correctly, Congress often/usually includes severability clauses in legislation, but elected not to in this case. Doesn't that mean that if any provision is struck down, the law should be struck down? Any thoughts on that from those who have studied more than I have?

Marc Rogers (3/29/2012 at 11:23 AM)
This law needs to be overturned for many reasons. It was fraudulently sold to start with and has clearly unconstitutional elements at the heart of it. Congress should start over and this time actually know what they are passing. A bad law that is not in comformity with Federal powers [INVALID] not to mention the untold number of regulations that result [INVALID] is simply not something that should be salvaged.