NFIB Sebelius Dissent

 

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ed., Supp. IV), 42 U. S. C. §18071 (2006 ed., Supp. IV)
(federal subsidies).  The Federal Government’’s increased
spending is offset by new taxes and cuts in other federal
expenditures, including reductions in Medicare and in
federal payments to hospitals. See, e.g., §1395ww(r) (Med-
icare cuts); ACA Title IX, Subtitle A, 124 Stat. 847 (““Rev-
enue Offset Provisions””). Employers with at least 50
employees must either provide employees with adequate
health benefits or pay a financial exaction if an employee
who qualifies for federal subsidies purchases insurance
through an exchange.  See 26 U. S. C. §4980H (2006 ed.,
Supp. IV).

 In short, the Act attempts to achieve near-universal
health insurance coverage by spreading its costs to indi-
viduals, insurers, governments, hospitals, and employers-—
while, at the same time, offsetting significant portions
of those costs with new benefits to each group. For ex-
ample, the Federal Government bears the burden of pay-
ing billions for the new entitlements mandated by the
Medicaid Expansion and federal subsidies for insurance
purchases on the exchanges; but it benefits from reduc-
tions in the reimbursements it pays to hospitals.  Hospi-
tals lose those reimbursements; but they benefit from the
decrease in uncompensated care, for under the insurance
regulations it is easier for individuals with pre-existing
conditions to purchase coverage that increases payments
to hospitals. Insurance companies bear new costs imposed
by a collection of insurance regulations and taxes, including
““guaranteed issue”” and ““community rating”” requirements
to give coverage regardless of the insured’’s pre-existing
conditions; but the insurers benefit from the new, healthy
purchasers who are forced by the Individual Mandate
to buy the insurers’’ product and from the new low-
income Medicaid recipients who will enroll in insurance
companies’ Medicaid-funded managed care programs. In
summary, the Individual Mandate and Medicaid Expan-

54

sion offset insurance regulations and taxes, which offset
reduced reimbursements to hospitals, which offset in-
creases in federal spending. So, the Act’s major provisions
are interdependent.

  The Act then refers to these interdependencies as
““shared responsibility.””  See ACA Subtitle F, Title I, 124
Stat. 242 (“”Shared Responsibility””); ACA §1501, ibid.
(same); ACA §1513, id., at 253 (same); ACA §4980H, ibid.
(same). In at least six places, the Act describes the Indi-
vidual Mandate as working “”together with the other pro-
visions of this Act.””  42 U. S. C. §18091(2)(C) (2006 ed.,
Supp. IV) (working ““together”” to “”add millions of new
consumers to the health insurance market””); §18091(2)(E)
(working ““together”” to “”significantly reduce”” the economic
cost of the poorer health and shorter lifespan of the unin-
sured); §18091(2)(F) (working “together” to ““lower health
insurance premiums””); §18091(2)(G) (working ““together”” to
““improve financial security for families””); §18091(2)(I)
(working “”together”” to minimize “”adverse selection and
broaden the health insurance risk pool to include healthy
individuals””); §18091(2)(J) (working ““together”” to “”signif-
icantly reduce administrative costs and lower health
insurance premiums””). The Act calls the Individual Man-
date “”an essential part”” of federal regulation of health
insurance and warns that “”the absence of the requirement
would undercut Federal regulation of the health insurance
market.”” §18091(2)(H).

C

  One preliminary point should be noted before applying
severability principles to the Act.  To be sure, an argument
can be made that those portions of the Act that none of the
parties has standing to challenge cannot be held nonse-
verable. The response to this argument is that our cases
do not support it.  See, e.g., Williams v. Standard Oil Co.
of La., 278 U. S. 235, 242-–244 (1929) (holding nonsever-

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