Affordable Care Act

The ACA's Legislative Findings Do Not Constitute an "Inseverability Clause"

A core element of the latest case against the Affordable Care Act rests on a legal fiction.

|The Volokh Conspiracy |

In Texas v. California, the Supreme Court is asked to consider whether the individual mandate is inseverable from the rest of the Affordable Care Act. If so, the state and individual plaintiffs in the case argue, the unconstitutionality of a penalty-less mandate requires striking down the entire ACA.

The plaintiffs argue that this result is required because the ACA contained an "inseverability clause" that was not repealed when Congress zeroed out the tax penalty used to enforce the mandate. The only problem is that there is no "inseverability clause" in the ACA. Rather, what the plaintiffs are referring to are congressional findings stressing the importance of the (then enforceable) individual mandate to the ACA's insurance market reforms. These findings were adopted in an effort to help insulate the mandate from an expected Commerce Clause challenge. Nonetheless, the plaintiffs' briefs repeatedly refer to these findings as an "inseverability clause" and the Justice Department's brief refers to the findings as "the functional
equivalent of an inseverability clause."

One problem with these claims is that findings are not and have never been considered to be the equivalent of an inseverability clause. Further, as Professor Abbe Gluck notes in a just-posted article in the Yale Law Journal Forum, "Reading the ACA's Findings: Textualism, Severability and the ACA's Return to the Court," these claims completely ignore congressional practice and the instructions of legislative drafting manuals about how legislators approach severability. Here is the abstract:

The Affordable Care Act (ACA) is back in the Court, but challengers' "textualist" arguments are not textualist at all. They argue a findings section in the ACA is an "inseverability clause," meaning that if the insurance mandate is eliminated, the whole ACA goes down with it. They argue this despite the fact that those findings are specific to one subsection, of one part, of one subtitle, of the ten-title law, and despite the fact that the language they seize on is boilerplate language that Congress often uses not for severability, but to justify its commerce power. Congress expressly tells us that too in the ACA's text. Challengers argue that Congress has explicitly spoken to the issue, but Congress's established drafting practices, and examples throughout the U.S. Code, make clear that when Congress actually writes an inseverability clause, it is unmistakably explicit about it and uses specific language absent from the ACA. Inseverability is a nuclear bomb. Congress doesn't hide it in mouseholes. There is a burgeoning movement to better understand how Congress drafts laws, one as relevant for textualists as anyone else.

Put another way, in order to consider these findings to be the equivalent of an inseverability clause one has to ignore what we know about how Congress actually drafts statutes, and how Congress expresses its intent to make statutory provisions inseverable when that is what Congress seeks to do.

There are other, more fundamental, problems with trying to argue that the findings are an inseverability clause. Among other things, the findings in question were written about a different law that operated in a different way. The 2010 findings were about the law that Congress enacted in 2010, yet that statute has been amended many time since. In 2010 it was a statute that contained a financial incentive to induce compliance with the mandate. That is no longer true. Further, Congress demonstrated its clear intent to allow the ACA to operate with an unenforceable mandate because that is precisely what Congress did in 2017 when it zeroed out the tax penalty. Looking at how Congress actually drafts statutes just provides further icing on the cake.

The Supreme Court will hear oral argument in Texas v. California (combined with California v. Texas) on November 10. My prior posts on this case are indexed here.

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  1. I gather the clingers are going to joust over the ACA until the moment universal health care is enacted . . . and beyond!

    There is probably a birther litigation rattling around somewhere, too.

  2. From what I read, it turns out that eliminating the penalty didn’t have the effect most thought it would. What happens if the findings turn out to have been wrong?

  3. “finding sin” should read “findings in”

    1. I found it more intriguing as written.

  4. I’ve heard of “severability” clauses, I’ve never yet seen an “inseverability” clause. This suggests to me that inseverability is the default, needing no clause.

    1. Brett,

      Inseverability needs to be the only possible option, though that would require an extremely unlikely constitutional amendment to enforce.

      Laws get voted on in their final form (duh!) and while there is no way of knowing the counterfactuals, one thing we can be fairly certain of is that if the bill didn’t pass until amendment X was made, then it wouldn’t have passed without it. So why should the law continue to stand if a court rules that the part added by amendment X is unconstitutional? Require the legislature at that point to have another go at it, with the knowledge that amendment X is a non-starter, and see if they can figure out some other way to get a majority.

      1. But it is seldom the case, and IIRC was not the case here, that statute A to Y plus Z fails to pass, X is added, and then only does it pass. If all we know is that A to Z passes, it’s harder to say whether X was essential.

    2. That’s contrary to lots and lots of case law, though. It would be interesting to hear from Adler why severability clauses are generally necessary the normal rule is to sever as little as possible to keep the law intact.

    3. Some other Brett believes the default is severability.

      The Court’s cases have instead developed a strong presumption of severability. The Court presumes that an unconstitutional provision in a law is severable from the remainder of the law or statute. For example, in Free Enterprise Fund v. Public Company Accounting Oversight Bd., the Court set forth the “normal rule”: “Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem, severing any problematic portions while leaving the remainder intact.”

  5. If Congress is fine with the bill hobbling along without the mandate, aka a 0$ mandate, whatever else that might mean, that’s that. Everything else is hyperventillation.

    1. Unless the conservatives on the Court end up being as ideological as y’all accuse the liberals of being.

      What will you say if the Court uses this nonsense to strike the ACA down? Worth it or nah?

  6. If the insurance markets with community rating and protection for pre-existing conditions cannot, or are not in fact, working properly without an individual mandate, then the states, which have pretty detailed hands-on insight into the workings of the health insurance markets in each state through rate regulation and the like, can impose an individual mandate tailored to the conditions in each state. If not one of them has done so, that is strong evidence that the remaining parts of the ACA don’t need an individual mandate to work. (Not even the plaintiffs in NFIB argued in the Supreme Court that a State could not impose an individual mandate, only that the federal government could not. (IIRC, they did argue that the States could not impose a mandate in the district court, but they lost on that issue and did not take it to the Supreme Court.))

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