The Volokh Conspiracy

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

Volokh Conspiracy

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.