NFIB v. Sebelius

Attached, please find NFIB’s opening brief filed late last week. In addition, here is a link to the State brief ($file/1.6.12hcbrief.pdf) and a link to the government’s brief defending the individual mandate (

NFIB Press Statement:

“The health-care law was intended to lower costs and expand coverage to more Americans,” said Karen Harned, executive director of NFIB’s Small Business Legal Center. “Unfortunately, a tortured and politically-charged legislative process resulted in a fragile bill, achieved only through special deals and politicking, and eventually cumulating in what is essentially a subsidy to insurers—the mandate that all Americans purchase health insurance or pay a penalty. President Obama and many legislators thought the individual mandate was the key to achieving the original intent of health-care reform. This is why the final law has no severability clause, even though earlier versions contained one, further illustrating Congress’ intent that the law must stand as a whole or not at all.

“Even the government acknowledges that the mandate is the heart of the legislation. Without the mandate, the entire law crumbles. If the Supreme Court finds the individual mandate unconstitutional, then the entire law must fall.”

For Immediate Release

Contact: Cynthia Magnuson, 202-314-2036 or Cynthia.Magnuson

Kristina Hernandez, 703-373-0632 or khernandez

Summary of NFIB’s Brief on the Non-Severability of the Individual Mandate

“By any fair measure, the text, structure, and operation of the ACA—not to mention its tortured path through the legislative process—make it evident that, without the individual mandate at its heart, no statute remotely resembling the Act would or could have been enacted.” (NFIB’s Brief on Non-Severability,page 27)

“[The Supreme] Court has never used severability to effect such a major change to such a major part of such a major bill.” emphasis added(NFIB’s Brief on Non-Severability,page 28)

Congressional intent: In constructing the Act, “Congress sought to restructure the health-insurance market to obtain near-universal coverage, bring down costs, and keep the federal deficit from growing.” Congress believed it could achieve both with a single bullet—the individual mandate. The mandate requires every American citizen to purchase health insurance. When coupled with a litany of related regulations prohibiting the insurance practices that Congress condemned as abusive and discriminatory, Congress argued that it had found the silver bullet. “[I]n light of the deletion of a severability clause from an earlier version of the bill … it is clear that Congress intended this unique legislative deal to rise or fall as a whole.” (NFIB’s Brief on Non-Severability, pages 27-29)

How the mandate works: The ACA forces “healthy individuals to buy full-scale insurance at artificially inflated prices,” essentially handing an “annual $30 billion subsidy to insurance companies. That subsidy allowed Congress to force the insurers, in turn, to sell coverage to the old and the sick,” indiscriminately and at “artificially low prices.” For those who cannot afford to purchase insurance at the reduced cost, the federal government can intervene in a limited capacity with additional subsidies. Miscellaneous taxes could generate revenue to balance out this spending. “And, with individuals and insurance companies bearing such a substantial amount of the [law’s] costs, employers and States could be co-opted into filling some residual gaps—by, respectively, sponsoring affordable insurance for employees and expanding public-insurance programs like Medicaid.” (NFIB’s Brief on Non-Severability, page 27)

If the mandate falls: Without the mandate—the heart of the law—none of its fundamental goals would be satisfied. Even the government has conceded that the guaranteed-issue and community-rating provisions could not be retained were the mandate to be stricken. Removal of the mandate would fundamentally alter the legislation, rendering it impossible to operate as Congress intended. Federal subsidies, for example, “would pay private insurance companies for the very ‘abusive’ practices Congress intended to forbid. Other actors, like health-care providers and the States, would bear burdens well beyond those intended by Congress,” as the elimination of the mandate and accompanying regulations would substantially alter the bill’s careful allocation of costs. Taxes would reap revenue intended to pay for spending no longer taking place. “At best, the parts of the Act unaffected in operation by the [mandate or insurance regulations] would amount to a hodge-podge of minor, miscellaneous measures”, many added only to secure the necessary votes for its passage. (NFIB’s Brief on Non-Severability, page 28)

Why the mandate and the rest of the law cannot be severed: “The ACA was the fragile product of extensive legislative deal-making; to strip out its centerpiece would fundamentally alter the original legislative bargain. … Invalidation of the mandate therefore requires that the entire Act be stricken.” Congress alone should manage “the complex and political task of revisiting comprehensive health-insurance reform.” “Eliminating the mandate and insurance reforms would have major ripple effects, twisting Congress’ [instruction] of ‘shared responsibility’ beyond repair. Accordingly, the Act must be invalidated in toto.” (NFIB’s Brief on Non-Severability, pages 29, 54)


NFIB is the nation’s leading small business association, with offices in Washington, D.C. and all 50 state capitals. Founded in 1943 as a nonprofit, nonpartisan organization, NFIB gives small and independent business owners a voice in shaping the public policy issues that affect their business. NFIB’s powerful network of grassroots activists send their views directly to state and federal lawmakers through our unique member-only ballot, thus playing a critical role in supporting America’s free enterprise system. NFIB’s mission is to promote and protect the right of our members to own, operate and grow their businesses. More information is available online at

11-393 11-400 ts NFIB.PDF


One Response to NFIB v. Sebelius

  1. Janet says:

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