“Because the Affordable Care Act does not include a severability clause, if the individual mandate is found unconstitutional, then the whole Act must be struck down as unconstitutional.”
Jan. 4, 2012 — The American Civil Rights Union filed its sixth brief challenging the constitutionality of the Patient Protection and Affordable Care Act, otherwise known as ObamaCare.
The brief to the U.S. Supreme Court, authored by ACRU General Counsel Peter Ferrara, argues that lack of a mandate forcing individuals to purchase health insurance through government-approved exchanges would doom the entire system.
At least one lower federal court has ruled that the individual mandate exceeds the constitutionally-enumerated powers of the federal government. And the health care law itself declares that it cannot work without the mandate. Since the law has no severability clause that ensures that striking down a portion would not invalidate the whole law, any ruling to that effect would disqualify the entire 2,700-page legislation.
Here’s why the mandate is key: Young, healthy people would not bother to buy insurance until they were ill, thus depriving the premium pool of revenue, which would drive up costs and eventually bankrupt the system, the brief argues.
“If regulation required fire insurers to issue policies to people whose houses were already on fire at standard rates, the fire insurance pool would include only all burned down houses, which would obviously be dysfunctional,” the brief says. “The resulting financial death spiral would cause the costs of other provisions of the ACA to soar.”