Instant Analysis of Texas v. U.S. (Obamacare Decision) Part III: Severability

The Fifth Circuit has operationalized Justice Thomas's Murphy concurrence


The Fifth Circuit decided Texas v. United States, the challenge to the constitutionality of the ACA. The panel divided 2-1. Judges Elrod and Engelhardt found that (1) the Plaintiffs have standing, (2) the individual mandate was unconstitutional, but (3) remanded for further proceedings on severability. Judge King dissented. My first post considered  whether the individual plaintiffs have standing. My second post considered the merits. This third post will address severability.

The majority's severability analysis begins at p. 44. The dissent's severability analysis begins at p. 84.

Judge Elrod's decision demonstrates, once again, Justice Thomas's influence. In Murphy v. NCAA, Justice Thomas called on the Court to reconsider its approach to standing doctrine. The lower courts, of course, cannot discard Supreme Court doctrine and follow a concurrence. Nor can the Justice Department urge a lower court to follow Justice Thomas's approach. But the federal government, as well as the Fifth Circuit majority, have–within the bounds of precedent–put Justice Thomas's concurrence on the wall.

The majority explained:

Justice Thomas' concurring opinion goes further, providing two reasons why navigating between the Scylla of poking small but critical holes in complex, carefully crafted legislative bargains and the Charybdis of invalidating more duly enacted legislation than necessary stands "in tension with traditional limits on judicial authority." Murphy, 138 S. Ct. at 1485 (Thomas, J., concurring). "[T]he judicial power is, fundamentally, the power to render judgments in individual cases," and severability doctrine threatens to violate that vital separation-of-powers principle in more than one way. Id. (Thomas, J., concurring).

The Fifth Circuit, in accordance with Thomas's opinion, has ordered a remand to determine which provisions of the ACA in fact injure the plaintiff; only those provisions can be enjoined. I anticipated this salutary move in my post-oral argument entry. I wrote:

Could DOJ simply urge a court to adopt Justice Thomas's approach? I think not. This approach would effect a revolutionary change in the way courts approach severability. Lower courts, including the 5th Circuit, lack the ability to jettison long-standing doctrine. But what if DOJ could quietly guide the courts towards the Thomas approach, without saying so? I suspect that DOJ is taking this exact approach in the Obamacare litigation. . . . I am not aware of any precedent that supports this position–DOJ cites none. Rather, I see this framework as a means to implement the Thomas concurrence.

In any event, the government is not troubled by the lack of precedent. Why not? Because the Thomas concurrence is premised on a jurisdictional argument.

Moreover, this remand is consistent with a recent concurrence by Judges Oldham and Ho in an en banc case.

Once you understand these dynamics of the case, the specifics of the majority opinion make a lot more sense. Specifically, Judge Elrod provides a way to operationalize the Thomas concurrence–through a remand:

On this question, we remand to the district court to undertake two tasks: to explain with more precision what provisions of the post-2017 ACA are indeed inseverable from the individual mandate; and to consider the federal defendants' newly-suggested relief of enjoining the enforcement only of those provisions that injure the plaintiffs or declaring the Act unconstitutional only as to the plaintiff states and the two individual plaintiffs.

What should happen on remand?

Second, the district court opinion does not do the necessary legwork of parsing through the over 900 pages of the post-2017 ACA, explaining how particular segments are inextricably linked to the individual mandate.

The court identifies some provisions of the ACA that would not cause any obvious injury to the plaintiffs:

Take, for example, the ACA provisions in Title IV requiring certain chain restaurants to disclose to consumers nutritional information like "the number of calories contained in the standard menu item." Or consider the provisions in Title X establishing the level of scienter necessary to be convicted of healthcare fraud. Without more detailed analysis from the district court opinion, it is unclear how provisions like these—which certainly do not directly regulate the health insurance marketplace—were intended to work "together" with the individual mandate. . . . Whatever the solution to the problem of "legislative guesswork" the district court opinion identifies in severability doctrine as it currently stands, it must include a careful parsing of the statutory scheme at issue to address questions like these.

Yet, the Court leaves the inquiry somewhat open:

We do the same here, directing the district court to employ a finer-toothed comb on remand and conduct a more searching inquiry into which provisions of the ACA Congress intended to be inseverable from the individual mandate. We do not hold forth on just how fine-toothed that comb should be—the district court may use its best judgment to determine how best to break the ACA down into constituent groupings, segments, or provisions to be analyzed. Nor do we make any comment on whether the district court should take into account the government's new posture on appeal or what the ultimate outcome of the severability analysis should be

The majority suggests that this sort of severability analysis could lead to several possible outcomes. Here, the court cites my article on the case:

It may still be that none of the ACA is severable from the individual mandate, even after this inquiry is concluded. It may be that all of the ACA is severable from the individual mandate. It may also be that some of the ACA is severable from the individual mandate, and some is not.46

46. For an explanation of some, but certainly not all, of the potential conclusions with regard to severability, see Josh Blackman, Undone: The New Constitutional Challenge to Obamacare, 23 Tex. Rev. L. & Pol. 1, 28–51 (2018) (stating that the district court could halt the enforcement of just the individual mandate, halt the enforcement of the entire Act, or halt the enforcement of the community-rating and guaranteed-issue provisions along with the individual mandate, for example). The district court could also issue a declaratory judgment without enjoining any government official.

One final note. Judge Elrod favorably cited Jonathan Mitchell's article, The Writ-of-Erasure Fallacy:

Second, severability doctrine forces courts to "weigh in on statutory provisions that no party has standing to challenge, bringing courts dangerously close to issuing advisory opinions." Murphy, 138 S. Ct. at 1487 (Thomas, J., concurring); see also Jonathan F. Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933, 936 (2018) ("The federal courts have no authority to erase a duly enacted law from the statute books, [but can only] decline to enforce a statute in a particular case or controversy."41).

41 If that is true, then courts are speaking loosely when they state that they are "invalidating" or "striking down" a law.

No, courts cannot "invalidate" or "strike down" laws. Judges should stop using those malapropisms.

NEXT: Crossfire Hurricane: What went wrong at the FBI?

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  1. My severablity analsys is generally pretty straightforward:

    1. Is there a severability clause?

    If no,

    2. See 1.

    Absent a severability clause, striking down part of a law creates a new law that Congress never voted on, was never passed, never signed by any President. And the courts are not a legislative branch, entitled to write laws.

    One vote, one law, up or down.

    1. Convenient principle, if nothing else.

      1. Yeah, I know your side would rather negotiate “compromises,” then immediately go to court and find an Obama judge to strike down the “concession” given to the Republicans, so that you get your cake and eat it too.

    2. Especially since the deliberations included several statements that the entire law, including the tax, was necessary for the law to succeed, and the severability clause was purposefully NOT included.
      Or is my little old brain infected with false memories?

    3. Exactly. As an example, I’ve long said that I would support private sale background checks if it came with national concealed carry reciprocity and preemption of state magazine and “assault weapon” bans. It would be absurd for a court to strike down one and leave the other in place. That would, as you said, create a law that half of the people who voted for it would have definitely opposed.

    4. Not engaging in severability analysis, even without a clause, harms people not in the case though by revoking those protections in an effort to remedy the harm of one plaintiff. I mean isn’t it absurd to suggest that one plaintiff who feels like he is harmed by one provision of a complex law is entitled to relief which revokes the law’s provisions that benefit millions of people?

  2. Presuming there are at least some provisions of the ACA that aren’t tied to the mandate, is there a (legal) point at which there’s too few untainted provisions to remain law?

  3. This sounds like a wall of words to me.

    Suppose we were to apply that severability analysis to the countless thousands of separate but equal laws enacted before Brown V Board of Education? It would bring chaos, to find provisions in many of those laws still enforceable.

    Is there a foundation case which clearly establishes the authority of courts to sever at all?

    When Congress passes faulty acts, the burden of fixing it should go back to Congress, not the courts.

    Carried to the absurd, severability would allow courts to strike the word “not” from the phrase “shall not”.

    1. Carried to the absurd, severability would allow courts to strike the word “not” from the phrase “shall not”.

      Please do not give them such ideas!

  4. Since Congress got rid of the penalty, the mandate has no teeth, and therefore whether it is unconstitutional, and further, severable, is irrelevant.

    Congress was fine with an injured ACA, deciding to not make any further changes or repeal it. The net effect on a meaningless line becoming unconstitutional is zero.

    Even theoretical lawbreakers where there is no penalty seems to be of no concern to the courts.

    1. No, as discussed in another of the posts, even if the penalty has been reduced to $0 for now, the law still mandates getting the insurance, the penalty is still described as a “penalty”, not “tax”, and this means that not getting the insurance is still illegal.

      For some people, committing a crime can have consequences beyond the penalty for the crime. If you’re on parole. If you’re trying to be licensed for certain professions.

      So it’s not an entirely moot point, even now.

      1. Brett, what will happen to you when you if you don’t have insurance next month? If the answer is nothing, you don’t have standing.

        If some court or parole board somewhere is actually considering failure to obtain insurance as a violation of the conditions of probation or parole (which is dubious) then that person can sue. It appears that there is no such plaintiff at the moment.

      2. From the outset of Obamacare, a person whose income was below the filing threshold had a $0 penalty if they didn’t carry health insurance, while a person above the filing threshold had a non-zero penalty.

        Do you think the former person who chooses not to carry health insurance is a lawbreaker, while the latter person who chooses not to carry health insurance and pays the non-zero penalty is not a lawbreaker?

      3. “For some people, committing a crime can have consequences beyond the penalty for the crime. If you’re on parole. If you’re trying to be licensed for certain professions.”

        I suspect you’re correct, and a plaintiff that could demonstrate that he is in that situation would have standing.

  5. This case gives federal courts no cause to decide severability doctrine. That which Congress severed, it necessarily found severable.

    End of story.

    1. What happens when a future Congress and President reimposes the tax? Is the entire law resurrected?

    2. If Congress intended the act of zeroing out the penalty to be a severance, why did they decline to use the severability language which they routinely use in almost every other piece of legislation?

      I decline to trust whatever crystal ball you are using to divine the unitary “intent” of a fractured, multi-party political process. Congress’ only evidence of intent should be what makes it into the actual passed bill(s). Congress zeroing out the penalty does not automatically mean they intended it to be for the purpose of severability.

  6. I’m honestly still not clear why the “law” that would be unconstitutional is the ACA and not the zeroing provision in the TCJA. The ACA as enacted was determined to be constitutional (I don’t agree but that is the baseline). A provision of the TCJA now causes it to be unconstitutional (I don’t agree with that either, but that is necessary for severability to be an issue).

    Why would the ACA be the issue and not the TCJA? If a change in the law makes an unconstitutional law then the change is the problem not the original state of the law. To hold otherwise would seem dangerous. It has always been clear that implied repeal is disfavored both by Courts and Legislatures. But what this would do is implied unconstitutionality. “We won’t repeal the law but we’ll enact a new provision that makes a part of that law unconstitutional and then argue the law has to fall because it is nonseverable” That is the crux of what the states are asking. That seems absurd.

    NFIB said that the mandate and penalty need to be read together. It stands to reason then that TCJA in changing one part changed the two together. If that change is unconstitutional it is the TCJA provision that falls not the law as originally enacted.

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