NFIB Sebelius Dissent

17 Oct


able statutory provisions that did not burden the parties).
It would be particularly destructive of sound government
to apply such a rule with regard to a multifaceted piece of
legislation like the ACA.  It would take years, perhaps
decades, for each of its provisions to be adjudicated sepa-
rately-—and for some of them (those simply expending
federal funds) no one may have separate standing.  The
Federal Government, the States, and private parties ought
to know at once whether the entire legislation fails.

  The opinion now explains in Part V-–C-–1, infra, why the
Act’’s major provisions are not severable from the Mandate
and Medicaid Expansion. It proceeds from the insurance
regulations and taxes (C-–1-–a), to the reductions in reim-
bursements to hospitals and other Medicare reductions
(C–-1-–b), the exchanges and their federal subsidies (C–-1-–c),
and the employer responsibility assessment (C–-1-–d).
Part V–-C-–2, infra, explains why the Act’’s minor provi-
sions also are not severable.

The Act’s Major Provisions

  Major provisions of the Affordable Care Act-—i.e., the
insurance regulations and taxes, the reductions in federal
reimbursements to hospitals and other Medicare spend-
ing reductions, the exchanges and their federal subsidies,
and the employer responsibility assessment—-cannot remain
once the Individual Mandate and Medicaid Expansion are
invalid. That result follows from the undoubted inability
of the other major provisions to operate as Congress in-
tended without the Individual Mandate and Medicaid
Expansion. Absent the invalid portions, the other major
provisions could impose enormous risks of unexpected bur-
dens on patients, the health-care community, and the
federal budget. That consequence would be in absolute
conflict with the ACA’’s design of ““shared responsibility,””
and would pose a threat to the Nation that Congress did


not intend.

Insurance Regulations and Taxes

 Without the Individual Mandate and Medicaid Expan-
sion, the Affordable Care Act’’s insurance regulations and
insurance taxes impose risks on insurance companies and
their customers that this Court cannot measure.  Those
risks would undermine Congress’’ scheme of ““shared re-
sponsibility.””  See 26 U. S. C. §4980I (2006 ed., Supp.
IV) (high-cost insurance plans); 42 U. S. C. §§300gg(a)(1)
(2006 ed., Supp. IV), 300gg–-4(b) (community rating);
§§300gg–-1, 300gg–3, 300gg-–4(a) (guaranteed issue);
§300gg–-11 (elimination of coverage limits); §300gg-–14(a)
(dependent children up to age 26); ACA §§9010, 10905,
124 Stat. 865, 1017 (excise tax); HCERA §1401, 124 Stat.
1059 (excise tax).

 The Court has been informed by distinguished econo-
mists that the Act’s Individual Mandate and Medicaid
Expansion would each increase revenues to the insurance
industry by about $350 billion over 10 years; that this
combined figure of $700 billion is necessary to offset the
approximately $700 billion in new costs to the insurance
industry imposed by the Act’’s insurance regulations and
taxes; and that the new $700-billion burden would other-
wise dwarf the industry’s current profit margin.  See Brief
for Economists as Amici Curiae in No. 11–-393 etc. (Sever-
ability), pp. 9–16, 10a.

  If that analysis is correct, the regulations and taxes will
mean higher costs for insurance companies.  Higher costs
may mean higher premiums for consumers, despite the
Act’s goal of “”lower[ing] health insurance premiums.””  42
U. S. C. §18091(2)(F) (2006 ed., Supp. IV).  Higher costs
also could threaten the survival of health-insurance com-
panies, despite the Act’s goal of “effective health insurance
markets.” §18091(2)(J).

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