Most attention has been devoted to whether or not the Supreme Court will invalidate the individual mandate, and how the legitimacy of the Court will be affected if it invalidates the Affordable Care Act. Little has been said about the effect of severing the mandate from the rest of the law. One implication of severance is that, like campaign finance, serious constitutional challenges arising from the Affordable Care Act will continue for years to come, continually pitting the judiciary against the executive branch, and thereby continually calling the Court’s legitimacy into question.
Exhibit One is the challenge to the HHS contraceptives mandate noted by Jonathan below:
Several Catholic dioceses and universities filed suit today against the so-called contraception mandate, the Washington Post reports hereand here. In all twelve lawsuits were filed in twelve separate federal district courts. There are 43 separate plaintiffs in these suits, including the Archdioceses of Washington, D.C. and New York, Catholic University, and the University of Notre Dame, where President Obama delivered the commencement address in 2009.
The best way to remove the Supreme Court from the path of this perpetual conflict is to invalidate the entire ACA, a decision amply supported by existing severability doctrine. From there, the next Congress will then have to revisit the problems with our current health care system by enacting reforms that enjoy bipartisan support. Should the Court invalidate the ACA in June, the next election will inevitably be about the precise shape of this health care reform. The timing of such a decision, therefore, could not be more fortunate for our political process.