Day 3 (Wednesday): Can the Court Uphold or Strike Down Only Part of the ACA and Is Medicaid Expansion Unconstitutional?

Supreme CourtWednesday was the third and final day of arguments at the Supreme Court on the Affordable Care Act.  There were two main questions:

  1. If the Court were to find the individual responsibility provision (which was the focus of Tuesday’s arguments) unconstitutional, does that mean the entire ACA law must be struck down or does it mean only the individual responsibility provision is struck down and the rest of the ACA survives?
  2. Is the Medicaid expansion (which allows childless adults and more low-income people to access Medicaid) constitutional?

You can listen to the arguments or read the transcript.

The first question of whether only part of the law can be struck down is based on a legal principle called “severability.”  Here is a quick summary of the key points for the severability issue:

  • When a court determines that a provision in a law is unconstitutional, it may determine that it is “severable.” That is, the provision can be removed, leaving the rest of the law in place. Severability is possible when the provision is independent, so that removing it doesn’t make the rest of the law meaningless. But if a provision is necessary to the entire scheme, or so intertwined with the rest of the law as to make removal impossible, then severability is not an option.
    • Severability may be built into a law, so that the law itself states that if one part is found unconstitutional, the rest will stand.
    • The ACA doesn’t have a severability provision, so the Court will have to make a determination as to severability.
  • In the case of the ACA, finding severability would leave a number of important consumer protections in place, like kids not being denied for pre-existing conditions, or allowing children to stay on their parents’ insurance until they’re 26, or not allowing insurance companies to charge women more.


On the second question, opponents tried to argue that the Medicaid expansion is coercive and unconstitutional.
 Medicaid is a joint federal and state program.  It is voluntary for states, although all participate because it is an effective means of offering needed health care coverage to seniors, persons with disabilities, kids, and low-income parents who can’t otherwise afford coverage.  When a state chooses to participate, the federal government pays the majority of the cost and the states must follow certain rules in operating the program.

Some points to consider on this second question:

  • The federal government has been giving the states money for various programs, or to promote certain policies, for a long time. For example, federal money for highways was tied to drinking age in 1984, so that states were required to raise the drinking age to 21 or lose federal dollars for their highways.
  • The ACA would extend Medicaid to everyone under age 65 who makes less than 138% of the federal poverty level (about $30,000 for a family of four). The biggest part of that expansion are childless adults, who have never been eligible for Medicaid. Between 2014 and 2016, the federal government will pay 100% of the costs for the newly eligible, and that will be scaled back until 2020, when the split will be 90/10, with the federal government paying the bulk.
  • The States argue that it wouldn’t matter if the federal government wanted to pay 100% of the costs forever–it’s still coercive.
  • No Medicaid expansion has ever been determined to be unconstitutional, because Medicaid is a voluntary program–states don’t have to participate. But if they do participate, they have to abide by the restrictions set up by the federal government in order to receive federal money. As Justice Ginsburg noted, the Supreme Court has never found coercion where the federal government offered the states something so good they could not pass it up.
  • For more information as to why the Medicaid expansion is constitutional, check out this fact sheet from our friends at NHeLP.


We believe that the Affordable Care Act is constitutional, and that expanding Medicaid in this way is a reasonable exercise of the federal government’s powers, and we anxiously await the Court’s decision.

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