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Affordable Care Act

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.

NEXT: More on the Ministerial Exemption and Religious Autonomy

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  1. First off, no new law can make an old law unconstitutional—otherwise Republicans could have made Medicare and SS and Great Society unconstitutional decades ago. Secondly, the zeroing out of the individual mandate is unconstitutional and the entire Trump tax cut should be declared unconstitutional.

    1. Why is it unconstitutional to decline to enforce a law?

    2. Seb, no matter how many times you repeat that refrain, it will never be true. Making meaningful amendments to an existing law can easily make unconstitutional.

      1. So why haven’t Republicans passed a law to make Medicare unconstitutional?

        1. Why hasn't Baby Jesus come down and given you your golden apple yet?

    3. The difference here is Robert's rather asinine opinion -- he ruled it was a constitutional exercise of congress's power to tax. BECAUSE it was a tax.

      Well if the tax part is repealed, then what authority did/does congress have to implement it?

      And, hypothetically, Congress could make both medicare and SS unconstitutional -- they could amend it to make the benefits "White Only" which would clearly be unconstitutional.

      1. That would be a new law that would be declared unconstitutional...Medicare wouldn’t be impacted.

      2. Maybe the (now meaningless) mandate is now unconstitutional, but that doesn't mean the rest of the law is unconsitutional.

    4. NOPE.

      The law made an old law unconstitutional by severely changing its nature. If you don't like that, maybe you should rail against the standard Roberts made to make the original law constitutional.

      Of course, the original law was never constitutional. And regardless, no matter which way you look at it, the individual mandate was a cornerstone of Obamacare, and hence it is not severable.

      1. Lol, nope. Obamacare is stronger than ever thanks to the corrupt Kushner family’s investment in the ACA Exchange subsidies through Oscar Health...Trump’s corruption sometimes helps Democrats. 😉

  2. 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."

    So how does this work in practice, though? You have a huge 2000 page law, and you decline to enforce the rules on pages 60-123?

    How did it work previously? What did Congress typically do when a court just declined to enforce a part of a law.

    1. It doesn’t matter what Congress did previously. Congress declined to enforce this portion of the statute while leaving the rest on the books. What it wants in this case is what it did in this case.

    2. I too am curious, but I would suppose it is because early American courts were not tasked with enforcing and judging the legitimacy of 2000 page legislative documents.

      From my POV severability is inherently dubious, because it is Article III purporting to mind read Article I legislators and the President's choice not veto. In most cases these bills are unseverable because they are the result of extensive horse trading. One congressman wants a new solar panel installation and another wants a wind farm, and the President wants a new oil rig. The law doesn't become law without all three begrudgingly agreeing to all the provisions. Striking 1 should mean striking them all because they are necessarily intertwined.

      Perhaps this was problematic in early American courts because almost all the laws that were challenged were criminal laws and it would have been bad to let postal frauds go just because Congress got overzealous criminalizing prostitution? I'd have to learn more about this history.

      1. "From my POV severability is inherently dubious, because it is Article III purporting to mind read Article I legislators..."

        Immediately followed by...

        "One congressman wants a new solar panel installation and another wants a wind farm..."

        How could you possibly reach this conclusion without reading the minds of these two congressmen? The very question we're attempting to answer re: severability in the first place is whether all aspects of the law "are necessarily intertwined". You've assumed that based on your assumption as to what Congress intended. Put differently, the only way to reach the conclusion that the entire law is "necessarily intertwined" is to engage in the very mind-reading you say is not permitted.

    3. Because the litigants in an Article 3 case are complaining of a specific problem with the law, either an unconstitutional provision, or an unconstitutional application to them, all Article 3 courts need to do is decline to enforce. The courts don't "enforce the rules" on the remaining pages. The executive does.

  3. Agreed.

    Appreciate the point that what Congress did - leave the mandate on the books but remove enforcement - results in the exact functional equivalent of a court striking the mandate down. A court could only do the equivalent thing, leave the mandate on the books but enjoin enforcement.

    And this means that Congress has definitively spoken as to what it wants. A court is not free to conduct its own severability inquiry when Congress itself has done the exact functional equivalent of severing the mandate but leaving the rest of the statute intact. It must follow what Congress has said.

  4. My recollection is that one of the few actual discussions about that bill was to include a severability clause or not. The legislature formally decided NOT to include a severability clause, because "the whole law was necessary in order for it to work.
    So deciding against clear legislative actions as well as documented legislative intent makes no more sense than calling a fine a tax.

    1. Could you identify another instance where a later Congress has partially repealed law enacted by an earlier Congress where the later Comgress thought it necessary to add a severability clause to indicate that yes, it really did intend to leave the rest of the law standing and it wasn’t an oversight?

      What the earlier Congress thought doesn’t matter in the least. Congress has power to change the law. Whenever it changes a statute, that always means it’s changed its mind. It is the intent of the Congress that enacted the current law, not the one that enacted the law that the later Congress partially repealed, that courts must honor.

    2. Are we suddenly triumphing legislative history (floor statements as opposed to committee reports, no less) as superior to the text of the statute?

    3. That's a dubious interpretation of the record, as I recall from the VC back then. But moreoever, there is an intervening Congressional action that cannot be ignored.

    4. Basically they were playing Chicken with the Court, omitting the usual severability clause out of a belief that the Supreme court would blink at striking down an entire major omnibus bill.

      And they won that game of Chicken, Roberts blinked.

  5. That is a very compelling brief. But it could have been a lot shorter: ie "Judge O'Connor is a hack who deliberately read sever ability doctrine backward."

    I truly appreciated the explanation of just why that statement is true, though.

  6. "So congressional intent is clear; it is embodied in the text and substance of the statutory amendment itself.,." I disagree. It was a half-hearted political ploy but their intent was clearly not to say that it was severable; their intent was to gain political cover but not repealing ACA but to force the courts to do it for them preciously because it was inseverable. So if we are talking about congressional intent the intent was clearly to have it be inseverable; I don't agree with the strategy (they should have just repelled it completely if that was what they wanted) but it is what they wanted.

    1. "they should have just repelled it completely if that was what they wanted" -- so the fact that they didn't repeal it completely proves they (as in "full Congress" rather than "just ACA opponents) didn't want to.

      1. Yeah, usual Republican bait and switch, they ran on repealing it, but never intended to, or else they'd have had a repeal bill all set to go when Trump took office with a Republican House and Senate.

        You can really tell what Republicans were lying about intending to do, on those occasions when they get the Presidency and both chambers, and still don't do diddly to fulfill their campaign promises.

  7. Out of deference for Congress, even if the Court decides that the 2010 findings were germane, they would still be required to conclude that the later Congress reached a different conclusion, with the benefit of additional experience with some of the underlying subject matter. SCOTUS isn't a legislator.

  8. Did the follow up legislation insert a severability clause into the original ACA? If it did not, then this argument is just a logical vapor.

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