The Penalty-less Individual Mandate Is Severable from the Rest of the ACA No Matter How You Look at It.

We submitted another strange bedfellows amicus brief on severability in the Texas ACA case.

This week, various interest groups, academics and others filed over three-dozen "top-side" amicus briefs in California v. Texas, the most recent challenge to the Affordable Care Act to reach the Supreme Court. Different briefs address different issues in the case -- standing, the constitutionality of the individual mandate, or severability -- but all seek reversal of the U.S. Court of Appeals for the Fifth Circuit's decision in this case and reject the conclusions of the U.S. District Court in Texas that initially concluded that Congress' decision to zero-out the tax penalty enforcing the individual mandate requires courts to strike down the entire ACA.

As when the case was before the district court and Fifth Circuit, I have joined with Professors Nicholas Bagley, Abbe Gluck, and co-blogger Ilya Somin to file an amicus brief explaining why, whatever else courts conclude, the individual mandate is severable from what's left of the ACA. Professors Gluck and Bagley are prominent defenders of the ACA, having argued in defense of the law's constitutionality and wisdom. Prof. Somin and I have been persistent critics and antagonists of the law. We all agree, however, that traditional severability principles can produce only one outcome in this case, should the Court reach the question. As we put it in the brief:

Amici are experts in constitutional law, legislation, statutory interpretation, and administrative law. They disagree on many legal and policy questions concerning the Affordable Care Act ("ACA"), Pub. L. No. 111-148, 124 Stat. 119 (2010), including many questions about how to interpret it and whether the plaintiff States have standing in the present case. Yet they agree on this: even assuming the insurance mandate is unconstitutional, it is severable from the other provisions of the ACA. Any contrary conclusion would be inconsistent with settled law and Congress's clearly expressed intent.

The brief explains why this conclusion necessarily follows from the straightforward application of existing severability doctrine.

Under the settled approach to severability that this Court has followed consistently for more than 100 years, the question here is not debatable: the mandate is severable from the rest of the ACA. Any other conclusion would be a judicial usurpation of Congress's lawmaking power. . . .

The cornerstone of severability doctrine is congressional intent. When part of a statute becomes unenforceable, a court usually must ask whether Congress would have preferred what remains of the statute to no statute at all. Typically, it is a court that renders a provision unenforceable, and the court must hypothesize what Congress would have intended in that scenario. Courts also will sometimes assess whether the statute functions without the provision— a proxy for legislative intent.

But this case is unusual. It presents no need for any of these difficult inquiries because Congress itself—not a court—eliminated enforcement of the provision
in question and left the rest of the statute standing. So congressional intent is clear; it is embodied in the text and substance of the statutory amendment itself.
In these circumstances, a guessing-game inquiry is not only unnecessary—it is unlawful. A court's insistence on nonetheless substituting its own judgment for
that of Congress—as the district court did here—usurps congressional power, turns the court into a legislator, and violates black-letter principles of severability.

Our brief also explains why the application of alternative approaches to standing, such as those suggested by then-Judge Kavanaugh in the Harvard Law Review, or Justice Thomas is his Murphy v. NCAA concurrence, produce the same result. On the latter point, we explain:

Justice Thomas has expressed the desire to align severability doctrine with "traditional limits on judicial authority" and eschew any "nebulous" inquiries into "hypothetical congressional intent." Murphy, 138 S. Ct. at 1486 (Thomas, J., concurring). Justice Thomas has stated that the practice in early American courts was simply to "decline to enforce" any unconstitutional provision "in the case
before them." Id. at 1485-86 (citing Kevin C. Walsh, Partial Unconstitutionality, 85 N.Y.U. L. REV. 738, 755-66 (2010)). "[T]here was no 'next step' in which courts inquired into whether the legislature would have preferred no law at all to the constitutional remainder." Id. at 1486 (quoting Walsh, supra, at 777); see Walsh, supra, at 757 (noting that Chief Justice Marshall in Marbury v. Madison did not consider which other parts of the Judiciary Act would stand or fall after deciding not to enforce the unconstitutional provision against the parties in the case).

Under Justice Thomas's approach, courts cannot reach out to declare other provisions of the ACA unconstitutional, as Congress certainly never indicated
through any "text that ma[de] it through the constitutional processes of bicameralism and presentment" that it wanted the entire ACA to fall if the individual mandate were held unconstitutional. Murphy, 138 S. Ct. at 1487 (Thomas, J., concurring). To the contrary, the only relevant text enacted through bicameralism and presentment was the law rendering the mandate unenforceable while leaving the rest of the statute in place.

As Justice Thomas explained in Murphy, there is no warrant for a Court to reach out to invalidate (or render unenforceable) provisions of a statute not directly at issue when Congress "has not has not expressed [such a] fallback position in the text" of the statute itself.

There no such "fallback position" in the text of the ACA. The closest thing plaintiff states can find are congressional findings adopted in 2010 describing a different mandate (one that is enforced by a tax penalty), that was part of a different law (the ACA as it stood in 2010, before it was repeatedly amended by subsequent Congresses), and that was adopted for a different purpose (to insulate the ACA from Commerce Clause challenge). Thus even if one makes the error of concluding that legislative findings can serve as the equivalent of a nonseverability clause, these findings are not enough to satisfy the test Justice Thomas suggests (let alone the standard required by existing severability doctrine).

Our brief is not the only one to make this point. The implications of Justice Thomas' approach to severability is also explored in the brief filed by the Republican Attorneys General of Ohio and Montana.  This excellent brief argues that the individual mandate is wholly unconstitutional, but nonetheless urges the Court to conclude that the mandate is completely severable from the rest of the Act. It's a powerful brief, and one that's definitely worth your time (assuming, of course, you have no interest to read three-dozen more).

For more on this case, and the issues involved, links to my prior posts (and some other writings) may be found at the end of this post.