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Democrats Ponder a Health Care Law Minus the Mandate

By Nellie Bristol and Emily Ethridge, CQ Staff

March 28, 2012 -- Congressional Democrats say they have some options for replacing the health law's individual mandate if the Supreme Court strikes it down. But they recently said that they believe the provision will stand and are not yet seriously considering alternatives.

"There's discussion quietly among some people about what-ifs. But there is no overall plan in place because I think people have confidence the court will do the right thing," Sen. John Kerry, D-Mass., said after some arguments on whether if the high court strikes down a portion of the health overhaul law the whole measure goes down as well. Kerry was in the courtroom when the constitutionality of the individual mandate was discussed.

Rep. Jan Schakowsky, D-Ill., said that the law could still be effective without the mandate. "I think the arguments were very strong," she said. "It seems to be that the case was made that even if the mandate were struck down that the bill could go forward."

Supporters of the challenge to the health care overhaul (PL 111-148, PL 111-152) said that judging by questions from the justices, it appeared that not only the mandate, but the whole bill was in trouble.

"After today's argument if you combine them with the last two arguments, no one in America will be surprised if the Supreme Court strikes down the Affordable Care Act," said Georgetown law professor Randy Barnett, legal counsel for the National Federation of Independent Business, which joined 26 states in challenging the law. "It was quite clear that at the very minimum, the court was sharply divided yesterday." Also, he said, the justices did not pose many questions about what the act would look like without the mandate.

Barnett did allow for the possibility that just some of the law would be struck down. But, he said, "They weren't at all interested in the argument that they should just strike down the mandate and leave the rest of the bill."

Mark Shurlett, the attorney general of Utah, said the mandate is the heart of the bill. "Patient protection and affordable care—you can't have one without the other," he said. "You toss out the mandate —that's what made it affordable—it fails in and of itself."

Ron Pollack, executive director of Families USA said he had a different take. "I'm not sure the court is prepared to do that" he said, referring to the notion of the justices striking down the whole law.

Reacting to the afternoon session featuring arguments over the law's Medicaid expansions, Emily Spitzer of the National Health Law Program said a ruling to strike down the program could mean future Medicaid changes passed by Congress could be subject to legal challenge.

"I think that is one of the implications," Spitzer said of the possible ruling. "It's hard to understand why previous expansion decisions would have been okay while this one isn't."

Pollack agreed saying no Medicaid expansion has ever been invalidated. "This would change the entire way the federal government functions," he said, because it would mean the federal government could provide money to states, but not put conditions on how it's used.

Plaintiffs in the case, including 26 state attorneys general, said the federal government's threat to withhold Medicaid funding if states did not agree to the expansion constituted coercion. Pollack and Spitzer said the provision allowing states to withhold funding was passed in 1965. Although states have been threatened by HHS with loss of funds, Pollack and Spitzer said the provision has never been used. "It's one of the ways in which the federal government bargains with states," Spitzer said.

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