The United States’s reply brief in Virginia v. Sebelius is broken into two parts: Part I, in which the United States is the Appellant, and Part II, in which the United States is a Cross-Appellee.
Part I makes the following arguments. First, that “Virginia lacks standing to challenge the minimum coverage provision.” Second, that “the minimum coverage provision is a valid exercise of Congress’s Commerce Power,” because (1) it “properly regulates the means by which people pay for health care services,” (2) it is “integral to the Affordable Care Provision is an Impermissible Means of Regulating Commerce.”
Finally, that “the minimum coverage provision is also independently authorized by Congress’s Taxing Power,” because (1) it “operates as a tax and will produce billions of dollars in annual revenue,” (2) it “is not punitive,” and (3) “the validity of a tax does not depend on its label.”
Regarding the severability issue, Part II argues that “the district court properly rejected the Commonwealth’s request to set aside Affordable Care Act provisions of unquestioned validity.” The United States contends that the “Plaintiff confuses the importance of the minimum coverage provision with the standards for determining whether valid provisions of a federal statute may be severed from a section of the statute that is held unconstitutional.” Relying upon Free Enterprise Fund v. Pub. Co. Accounting Oversight Bd., the United States writes that if “provisions are ‘fully operative as a law,’ they must be sustained ‘[u]nless it is evident that the Legislature would not have enacted those provisions . . . independently of that which is [invalid].’” Thus, the United States argues that because the Act “comprises hundreds of provisions, many of which are already in effect, and most which have not relationship whatsoever to the minimum coverage provision,” and because “[m]any provisions implicate the rights and implications of third parties,” the district court acted properly in refraining “from invalidating more of the statute than necessary.”