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The Washington attorney who led the Supreme Court case against “ObamaCare” said the issue that is being most closely watched by companies is whether the high court would agree to salvage the rest of the law even if it strikes down a provision at the heart of it.
Paul Clement, the former solicitor general under George W. Bush who has won high marks for his oral arguments against the Affordable Care Act, said in a breakfast meeting with reporters that the question of “severability” was key to corporations awaiting a decision on the matter.
“It is where the rubber meets the road in this,” Mr Clement said at a breakfast meeting hosted by the US Chamber of Commerce to discuss business cases before the court.
A decision in the case is expected as soon as Monday.
The overriding question justices are examining in their review of the ACA is whether the individual mandate, a provision that forces all Americans to buy insurance, is constitutional. The provision goes hand-in-hand with certain consumer protections in the law, including rules that prohibit insurance companies from discriminating against patients with pre-existing conditions. The Obama administration argued that even if the high court struck out the individual mandate and those consumer protections, it could keep the rest of the law intact.
Mr Clement pointed specifically to an area of the law that is unrelated to the mandate: it created a regulatory pathway for generic versions of biotech drugs, known as biosimiliars, at the Food and Drug Administration.
On a lighter note, Mr Clement said he believed the importance of the healthcare decision was giving ordinary citizens – as well as political reporters – an important education about the nature of the court. He also speculated that, while the court’s nine justices would likely be happy to have their approval rating above 45 per cent, which they probably are not “too worried” that a recent poll found they had slipped below that threshold.
“In the long run, people will have an appreciation that this really is a different branch of government,” he said.
Neal Katyal, a former acting solicitor general under the Obama administration who appeared alongside Mr Clement at the Chamber breakfast, said he believed the biggest misconception heading into the decision was that the conservative justices on the court might relish dealing a political blow to President Barack Obama if the law was overturned.
“If the mandate is overturned, it will be the hardest vote they cast in their lifetime,” he said. Mr Katyal added, however, that he believed “ObamaCare” would be upheld because striking down the mandate would be “quite a grave thing”.