The Obama administration has argued the majority of the health reform law can stand if its individual mandate to buy insurance is deemed unconstitutional. But it did admit two key provisions would need to get the axe.
- The requirement that health insurance companies accept any individuals regardless of their health status (pre-existing conditions), and
- The rule prohibiting insurers from charging individuals higher premiums based on their medical history.
In a brief the Obama administration just filed with the Supreme Court, the Department of Justice (DOJ) explained that the entire healthcare reform law should remain intact, minus these two provisions — even if the cornerstone of the law, the individual mandate, is deemed unconstitutional.
Beginning March 26, the Supreme Court will hear oral arguments to determine three things: a) whether the individual mandate challenges to the law are barred by the Anti-Injunction Act, b) if the mandate is constitutional and c) whether the remainder of the law can stand if the mandate is deemed unconstitutional and struck down.
A ruling is expected by the end of June and could have a major impact on the 2012 presidential election.
One reason the DOJ gave as to why the entire law shouldn’t be struck down if the individual mandate to buy insurance or pay a penalty is: Many of the provisions of the law take effect in the years prior to the individual mandate, demonstrating that Congress intended the provisions to operate independently.
The argument from the National Federation of Independent Business and the 26 states challenging the law’s constitutionality, as reported by Reuters: The belief that the law can stand without the individual mandate is like saying a building can stand after its foundation has crumbled.