If a 90-minute argument over a statute’s severability seems like a prescription for insomnia, some Virginia coal miners stand ready to dispel that misperception.

They and their spouses have a critical stake in how the U.S. Supreme Court answers a key question in the legal battle over the Patient Protection and Affordable Care Act (ACA): If the new law’s mandate that eligible persons have minimum health insurance is unconstitutional, is the mandate severable or must the entire act fall?

There is no question what the answer should be in the mind of Timothy MacDonnell, who runs the Black Lung Clinic at Washington and Lee University School of Law. If the mandate is held unconstitutional, it alone should be struck, he argues in an amicus brief supporting the position taken by the Court-appointed amicus, H. Bartow Farr III of Bartow & Farr.

“We represent disabled, former coal miners and surviving spouses,” said MacDonnell. “It was very easy to arrive at that decision because, of our 37 active clients, we have 19 directly affected by amendments to a part of ACA. They are getting money right now because of the amendments to the Black Lung Act. Those 19 — 13 widows and six former miners — will stop getting benefits they rely on if the ACA is struck.”

The public has a perception that the new health law is prospective and will not take effect until 2014, he said. “But the answer with regard to coal miners is: absolutely not,” he explained. “It’s in effect, and over 700 people are receiving benefits based on the amendments to ACA. Not only will they stop getting paid — and the monthly benefit is not substantial — but the government is capable of pursuing them for money already received.”

The black lung amendments, he added, have nothing to do with the mandate or healthcare generally and function independently.

MacDonnell speaks with a passion unlikely to be heard in arguments on March 28 on the severability question. His passion for his clients stems from witnessing what he calls their “death by inches” because they cannot breathe, the result of black lung disease.


The justices will hear basically three different answers to the severability question during the arguments.

The United States, represented by Deputy Solicitor General Edwin Kneedler, argues that the U.S. Court of Appeals for the 11th Circuit erred when it held, after finding the mandate unconstitutional, that only the mandate should be severed.

The government contends that the mandate and two other provisions are inextricably linked: the guaranteed issue provision, which prohibits insurers from refusing to offer coverage to persons with pre-existing conditions, and the community-rating provision, which bars insurers from charging higher premiums based on a person’s medical history.

The Court’s normal rule after finding a constitutional defect in part of a law is partial rather than total invalidation of the law “in order to respect the judgments of the democratically accountable branches of government,” according to the government. The remaining parts are left intact if they are “consistent with Congress’ basic objectives in enacting the statute” unless it is clear that Congress would not have wanted the remaining provisions to stand.

The coverage mandate, however, is essential to ensuring that the guaranteed issue and community rating reforms accomplish Congress’ goals in enacting ACA, adds the government. If the mandate goes, so too should its two companion provisions, but only those provisions.

“As Congress expressly found (and as experience in the States confirmed), those provisions would create an adverse selection cascade without a minimum coverage provision, because healthy individuals would defer obtaining insurance until they needed health care, leaving an insurance pool skewed toward the unhealthy,” the government’s brief states. “Premiums would increase significantly under that scenario, and the availability of insurance would decline — exactly the opposite of what Congress intended in enacting the Affordable Care Act.”

The government tells the justices that many other provisions, such as those focused on controlling costs, offering tax credits and improving public health, have no connection to the mandate and operate independently.


The law’s opponents — the 26 state attorneys general, the National Federation of Independent Business (NFIB) and four private individuals— counter that the ultimate question in a severability analysis is Congress’ intent: would Congress have enacted the law without the unconstitutional provision.

“Here, the answer is clear,” writes the states’ counsel, Paul Clement of Bancroft, who will argue March 28. “Congress considered the individual mandate essential to the Act’s functioning, to its passage, and to its ability to achieve Congress’ goal of near-universal health insurance. This Court cannot remove the hub of the individual mandate while leaving the spokes in place without violating Congress’ evident intent. Without the promise of insuring the uninsured, there is no prospect that the ACA ever would have become law.”

Jones Day’s Michael Carvin, the NFIB’s counsel, agrees the entire act should fall if the mandate is unconstitutional. “Once you’ve ripped the heart and lungs out of a body, it doesn’t matter if the fingers can continue to actually move,” he said recently. “What matters is if they move in the way that Congress intended. And there is no way when two basic pillars of that act are ripped out, that you could possibly say that the rest of the act is okay. This is particularly true of this act because we know that it was a series of compromises and that pulling out any one part was going to doom the whole.”

Because neither the government nor the states and the NFIB would defend the 11th Circuit’s approach, the justices appointed H. Bartow Farr III to argue that only the mandate should be severed if found unconstitutional.

Farr agrees that the guaranteed issue and community ratings provisions were core reforms of the insurance market and were put in place to open the insurance market to millions of people unable to affordable coverage because of poor health. They were designed to work in tandem with the mandate, he notes.

But, he writes in his brief, it seems “improbable,” if the mandate were struck down, that “Congress would prefer to put many of these consumers back where they were before passage of the Act, facing the prohibitively high costs and outright denial of coverage that were standard features of the market that Congress was trying to change. At the very least, the Court should require clear evidence to that effect. That kind of evidence is lacking here.”

The guaranteed issuance and community rating provisions should remain in place, concludes Farr, “and, if they do, the case for striking down all of the remaining provisions — most of which have little or nothing to do with the minimum coverage provision — essentially falls of its own weight.”

The black lung clinic is one of four amici supporting Farr. But if the Court disagrees with Farr, the clinic’s MacDonnell has a fallback position. The Court’s precedents say it can still save the two black lung amendments, he argues.

The amendments returned the law to what it was in the 1970s, explained MacDonnell, and that is another reason they are unconnected to the mandate. They create a rebuttable presumption that if a miner worked 15 years underground and had a totally disabling lung disease, it is presumed coal mining substantially contributed to the disease. They also ensure that a surviving spouse, whose miner won a benefit claim, gets derivative benefits and does not have “to fight that fight again,” he said.

And it is a fight, according to MacDonnell. The Government Accountability Office reported in 2009 that 13 percent of miner claims submitted were successful, and the coal company appeals 80 percent of those claims.

“In my experience, the average case takes three-to-six years to resolve,” he added. In the meantime, the spouse — most often a woman — becomes primary caretaker of the ailing miner whose world grows smaller and smaller. “It becomes a 24/7 job for the spouse for the five to six years it takes for the miner to pass away. It’s all a tragedy.”

Marcia Coyle can be contacted at mcoyle@alm.com.