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ACA on Trial: Severability

MedPageToday, 2012

WASHINGTON -- Next week the will hear oral arguments on the constitutionality of the healthcare reform law, just days after the two-year anniversary of the Affordable Care Act (ACA).
In a three-part series, MedPage Today takes a closer look at the main arguments for and against the law.
In this second article in the series, we discuss the arguments on whether the mandate can be removed from the law.
On Friday, we'll provide analysis of the constitutional issues involved in the ACA's expansion of Medicaid.
The individual mandate -- easily the most controversial piece of the landmark law -- requires everyone to have health insurance starting in 2014 and levies a tax penalty on those who don't.
It is considered by many to be the linchpin of the entire law and is expected to bring millions more into the insurance market.
Whether the mandate is constitutional is the main issue driving the debate (and one the court will hear oral argument on on Tuesday).
On Wednesday, the Court will devote 90 minutes of oral arguments to the issue of whether the rest of the ACA can still stand if the mandate is struck down.
The states who are suing the government over the ACA have asked the Supreme Court to strike down the entire law if it finds the individual mandate to be unconstitutional.
The Obama administration argues just the opposite: That if the mandate is found to be unconstitutional, , with the exception of two provisions -- the guaranteed-issue provision, which bans insurers from refusing to offer coverage due to a preexisting medical condition, and the community rating provision, which bars insurers from charging higher premiums based on a person's medical history.
"Other provisions can operate independently and would still advance Congress' core goals of expanding coverage, improving public health, and controlling costs even if the minimum coverage provision were held unconstitutional," Justice Department lawyers wrote in their brief filed with the Supreme Court on the separability issue.