The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Strange Bedfellows Join on Severability in the Latest ACA Case

There's room for reasonable disagreement on many aspects of the latest ACA litigation, but the severability question should be clear.


The latest lawsuit against the Affordable Care Act is clever, but ultimately underwhelming, for reasons I explained here (and in this teleforum debate).

As a practical matter, the central issue in the case is severability—whether the alleged unconstitutionality of an individual mandate with no tax penalty attached requires the invalidation of other portions of the law. For the reasons I explained in my prior post, the answer to this question should be "no." Congress reduced the "tax" on failing to obtain qualifying health insurance to zero and left the remainder of the ACA in place. This gives courts no warrant to strike out other provisions of the law that Congress left in place.

Although the Department of Justice accepted that some portions of the ACA are inseverable from the emasculated mandate, there does not appear to be much disagreement among academics. This morning, five of us filed an amicus brief in Texas v. United States explaining why the severability arguments advanced by both the states and DOJ are without merit. The other signatories to the brief are Nicholas Bagley, Abbe Gluck, Ilya Somin, and Kevin Walsh—a group not known to agree on much with one another, particularly on the ACA. If this set of strange bedfellows can agree on the severability question, that should tell you something.

Here is a brief summary of our argument:

The cornerstone of severability doctrine is congressional intent. Under current Supreme Court doctrine, a court must offer its best guess on what Congress would have wanted for the rest of the statute if a single provision is rendered unenforceable. But this guessing-game inquiry does not come into play where, as here, Congress itself has essentially eliminated the provision in question and left the rest of a statute standing. In such cases, congressional intent is clear—it is embodied in the text and substance of the statutory amendment itself. Under these circumstances, a court's substitution of its own judgment for that of Congress would be an unlawful usurpation of congressional power and violate basic black-letter principles of severability. Yet that is what the plaintiff States and the United States invite this Court to do.

And here is how we conclude:

Although views on the merits of the ACA as a matter of law and policy vary widely, those positions are irrelevant to severability. When a court finds a portion of a statute unconstitutional and considers what that means for the rest of the law, fundamental questions of separation of powers and the judicial role are implicated. For that reason, courts have always been rightfully cautious when considering severability, homing in on any available evidence of congressional intent and seeking to salvage rather than destroy. If courts invalidate an entire law merely because Congress eliminates or revises one part, as happened here, that may well inhibit necessary reform of federal legislation in the future by turning it into an "all or nothing" proposition.

The positions of the United States and the plaintiff States here get severability exactly backward. They disregard the clearly expressed intent of Congress and seek judicial invalidation of statutory provisions that Congress chose to leave intact. Accepting their invitation to rewrite the ACA under the guise of "severability" would usurp Congress's role and inject incoherence into this critical area of law.

A full copy of the brief may be found here.

As I tried to explain in my prior post, the DOJ's approach to severability (and, as I'll detail in another post, its approach to standing) are more concerning and unusual than its refusal to defend the constitutionality of an unenforced and unenforceablle mandate. In the WSJ, Sai Prakash and Neil Devins make the case that DOJ's refusal to defend a legal provision many in the Administration believe is unconstitutional. They write: "The Justice Department's filing turns not on some independent executive judgment about the ACA but on a straightforward interpretation of the Supreme Court's 2012 precedent." Yet, as they also note, the DOJ's position on severability is "more tenuous."

The DOJ's approach to severability in this case is unmoored from current doctrine. It is also a bit careless. As Nicholas Bagley notes, the DOJ brief targets the relevant provisions of the U.S. Code, rather than the ACA itself (Public Law 111-948). As a consequence, it could actually invalidate more than the individual insurance market reforms Congress adopted in 2010. It's almost as if those who wrote the brief did not fully understand the ACA and how it integrates with other federal laws governing health insurance—or perhaps the brief was the result of a political imperative not to be seen as defending the ACA, rather than a careful consideration of the relevant legal rules.