Landscape of the Amici Supporting Florida’s Medicaid Brief

You may also like...

4 Responses

  1. I. Glenn Cohen says:

    Another nice post Nicole! On the last point, I’ll note that if the ACA falls because of the Medicaid Expansion (wouldn’t that be something?), that will in part be a function of the position the Obama and administration and the ACA challengers have taken as to severability as I understand it, that it all stands or falls together. One can understand why the challengers are motivated to take that view. As for the DOJ (full disclosure, I used to work in the DOJ office that litigates these kinds of cases but before this litigation was ever on the horizon) to me it has to be viewed as a kind of game of chicken — if they make the consequence of striking down a piece of the legislation mean that all the dominoes fall, the court will be unlikely to go there. That is a high-stakes game.
    As I suggest at the end of this interview with the New England Journal of Medicine, http://www.nejm.org/action/showMediaPlayer?doi=10.1056%2FNEJMp1113416&aid=NEJMp1113416_attach_1&area=, the idea that NOTHING in the bill is severable seems very hard to swallow. Things like the follow-on biologics parts of the bill seem so separate from the rest, that I think it is quite plausible that Congress would want it retained even if the expansion or the mandate go. SCOTUS has quite sensibly appointed an amicus to argue for severability, but should it find part of the ACA unconstitutional I do hope the court will also seek supplemental briefing on the severability question from the DOJ since the bill has so much in it and is so complex, that cutting it up requires a fair amount of knowledge and thought.

  2. Hopefully some good amicus briefs will come in defending Medicaid!

  3. Brett Bellmore says:

    It seems to me that the quite defensible argument for non-severability, is that Congress knows how to write a severability clause into a bill when they want, and they didn’t in this bill.

  4. Nicole Huberfeld says:

    Glenn, thanks for sharing your insights, these are great points. It seems to me that regardless of the game of chicken, the Court has an obligation to be more thoughtful as a matter of separation of powers (let alone the long line of precedent for the Court to sever a statute whether or not it contains a severability clause). Here, the statute covers so much territory – private insurance, Medicare, Medicaid, public health issues, drug manufacturing issues, etc. – that it’s nonsensical to read it as non-severable. But, as you know, the Court does not like to delve into the specifics of healthcare statutes, especially Medicare and Medicaid. And a number of the briefs speak in sweeping terms about “Title II” and its nonseverability from the whole universal insurance project. I just hope the ‘strategy’ does not backfire!