On the New York Times Op/Ed page today, Professors Abbe Gluck and Michael Graetz express befuddlement and disappointment concerning DOJ's argument to the Court that the so-called "individual mandate" provision of the Affordable Care Act is not severable from the insurance nondiscrimination provisions of the Act, such that if the Court were to declare that the former is unconstitutional, the latter would be inoperative, as well.

"It is Congress, not the court," Gluck and Graetz write, "that has the constitutional power and responsibility to make difficult legislative policy decisions like these. By arguing against severability, the Obama administration . . . is urging the Supreme Court to abandon its tradition of judicial restraint, to ignore longstanding precedents and to undermine the separation of powers."

According to Gluck and Graetz, "It’s not clear why the Obama administration has chosen this course."

In fact, the reasons for the Administration's argument are crystal clear: Indeed, they're spelled out in detail in no fewer than four of the government's merits and severability briefs. (See, e.g., pages 24-30 of the opening merits brief; pages 13-15 of the merits reply; pages 44-54 of the severability opening brief; and pages 8-21 of the severability reply brief.)

In those briefs the government agrees with the basic principles of severability and allocation of power that Gluck and Graetz advocate. The government stresses, for instance, that "when this Court invalidates a portion of a statute, it must retain those portions of the Act that are (1) constitutionally valid, (2) capable of functioning independently, and (3) consistent with Congress' basic objectives in enacting the statute," and that therefore in order to deem another provision inseverable from the invalid provision, "the Court should have clear evidence that Congress, faced with the unconstitutionality of one part of a statute, would have wanted some or all of the remaining parts struck down as well.” For those reasons, the government strongly contests the arguments of the respondents that the entire Act should fall if the Court holds that the insurance-maintenance provision (section 5000A) is unconstitutional.

However, as I explained in a post here a couple of days ago, one of the government's principal arguments in support of the constitutionality of section 5000A is that that provision was hardly a stand-alone objective of the enacting Congress; it was, rather, an ancillary provision, one that is necessary and proper to the effectuation of the central provisions of the Act, namely, the Guaranteed Issue and Community Rating provisions (the nondiscrimination provisions) that Gluck and Graetz--like the government -- quite understandably wish to preserve. Indeed, the government's substantive argument is that the GI and CR provisions will be counterproductive to the overall aim of the Act (universal access to affordable health care) -- because they will act as an incentive for individuals to buy insurance only when their health-care needs are acute and extensive, thus driving the cost of such insurance through the roof and eventually making it unavailable for everyone -- if they are not conjoined with the requirements of section 5000A.

It would be a bit difficult, to say the least, to make such an argument to the Court if the government were also to argue that the nondiscrimination provisions would continue to work just fine, standing alone.

Nor is this just a clever, after-the-fact lawyers' argument. It best describes what Congress actually did. The principal impetus behind the ACA was not a desire to "force people to buy a commercial prodyct," but instead the effort to establish the nondiscrimination rules themselves, in order to make health insurance, and thus health care, more affordable for all. Congress looked to the experience in the states for guidance, and it found that such nondiscrimination provisions led to a "death spiral" in those states where there wasn't an insurance-maintenance provision . . . but that in Massachusetts, where there was such a requirement, the nondiscrimination provisions were much more effective in accomplishing what they were designed to do.

Accordingly, Congress -- not the President, or DOJ, or the Court -- made the statutory finding (42 U.S.C. 18091(2)(I)) that:

Gluck and Graetz thus are correct as a matter of interpretive principle, and DOJ agrees, that "it is Congress, not the court, that has the constitutional power and responsibility to make difficult legislative policy decisions like these." But Congress has made that choice here. DOJ's litigating position is simply a reflection of that entirely reasonable legislative judgment -- a judgment that provides one of the most powerful arguments for why section 5000A is constitutional, whatever one's views of the extent of Congress's Commerce authority.

NOTE: Just to be clear, the government's position in its severability briefs is that although the nondiscrimination provisions are not severable from section 5000A, that question is not justiciable in these cases--and therefore the Supreme Court should not resolve it even if it declares section 5000A to be unconstitutional, but should instead await a case in which some other plaintiffs, with standing to do so, challenge those provisions: