The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In Texas v. California, the Supreme Court is asked to consider whether the individual mandate is inseverable from the rest of the Affordable Care Act. If so, the state and individual plaintiffs in the case argue, the unconstitutionality of a penalty-less mandate requires striking down the entire ACA.
The plaintiffs argue that this result is required because the ACA contained an "inseverability clause" that was not repealed when Congress zeroed out the tax penalty used to enforce the mandate. The only problem is that there is no "inseverability clause" in the ACA. Rather, what the plaintiffs are referring to are congressional findings stressing the importance of the (then enforceable) individual mandate to the ACA's insurance market reforms. These findings were adopted in an effort to help insulate the mandate from an expected Commerce Clause challenge. Nonetheless, the plaintiffs' briefs repeatedly refer to these findings as an "inseverability clause" and the Justice Department's brief refers to the findings as "the functional
equivalent of an inseverability clause."
One problem with these claims is that findings are not and have never been considered to be the equivalent of an inseverability clause. Further, as Professor Abbe Gluck notes in a just-posted article in the Yale Law Journal Forum, "Reading the ACA's Findings: Textualism, Severability and the ACA's Return to the Court," these claims completely ignore congressional practice and the instructions of legislative drafting manuals about how legislators approach severability. Here is the abstract:
The Affordable Care Act (ACA) is back in the Court, but challengers' "textualist" arguments are not textualist at all. They argue a findings section in the ACA is an "inseverability clause," meaning that if the insurance mandate is eliminated, the whole ACA goes down with it. They argue this despite the fact that those findings are specific to one subsection, of one part, of one subtitle, of the ten-title law, and despite the fact that the language they seize on is boilerplate language that Congress often uses not for severability, but to justify its commerce power. Congress expressly tells us that too in the ACA's text. Challengers argue that Congress has explicitly spoken to the issue, but Congress's established drafting practices, and examples throughout the U.S. Code, make clear that when Congress actually writes an inseverability clause, it is unmistakably explicit about it and uses specific language absent from the ACA. Inseverability is a nuclear bomb. Congress doesn't hide it in mouseholes. There is a burgeoning movement to better understand how Congress drafts laws, one as relevant for textualists as anyone else.
Put another way, in order to consider these findings to be the equivalent of an inseverability clause one has to ignore what we know about how Congress actually drafts statutes, and how Congress expresses its intent to make statutory provisions inseverable when that is what Congress seeks to do.
There are other, more fundamental, problems with trying to argue that the findings are an inseverability clause. Among other things, the findings in question were written about a different law that operated in a different way. The 2010 findings were about the law that Congress enacted in 2010, yet that statute has been amended many time since. In 2010 it was a statute that contained a financial incentive to induce compliance with the mandate. That is no longer true. Further, Congress demonstrated its clear intent to allow the ACA to operate with an unenforceable mandate because that is precisely what Congress did in 2017 when it zeroed out the tax penalty. Looking at how Congress actually drafts statutes just provides further icing on the cake.
The Supreme Court will hear oral argument in Texas v. California (combined with California v. Texas) on November 10. My prior posts on this case are indexed here.