Thursday, March 29, 2012

To Destroy, and Not to Save: The Conservatives’ Bid to Strike Down the Entire Affordable Care Act

David Gans

Severability is a doctrine of judicial restraint dating all the way back to the beginnings of judicial review that counsels that a court must try to save, not destroy, a legislative enactment by severing any unconstitutional provisions or applications rather than invalidating the statute as a whole, so long as the remainder is fully operative as law and coheres with the intent of Congress. As Chief Justice John Marshall observed almost two centuries ago, “[i]f any part of the act be unconstitutional, the provisions of that part may be disregarded while full effect will be given to such as are not repugnant to the Constitution of the United States . . . .” But yesterday morning, during oral argument, a number of the Court’s conservative Justices seemed poised to invoke the doctrine of severability to strike down the entire Affordable Care Act, turning judicial restraint on its head.

During the argument, Justice Antonin Scalia – long admired by conservatives as a champion of judicial restraint – was the most vocal of the Justices in supporting Paul Clement’s argument that the Court should strike down the entire Affordable Care Act, including hundreds of provisions that no one argues are beyond the constitutional power of Congress and bear no possible relation to the individual mandate. Throughout the argument, Justice Scalia argued that “if you take the heart of the statute, the statute’s gone,” and hence, if the individual mandate falls, so too does the entire Affordable Care Act, even unrelated provisions designed, for example, to provide black lung benefits, health services for Native Americans, and to promote breastfeeding. Justice Scalia’s argument was based less on applying severability law as developed by the Court – which as Justice Ruth Bader Ginsburg pointed out called for the Court to act as “salvage job” not a “wrecking operation” – but on Justice Scalia’s own intuitions about political process theory. Scalia suggested that Congress would be better off with a clean slate, even if that meant invalidating a long list of democratically enacted provisions that unquestionably fell within Congress’ constitutional powers, since otherwise, in Scalia’s view, legislative inertia would make it too difficult for Congress to respond to a ruling invalidating the individual mandate. In Scalia’s hands, severability doctrine requires the court to destroy, not save, statutes, reversing the received wisdom about severability dating all the way back to the Marshall Court. No wonder Justice Elena Kagan called Scalia’s approach a “revolution in our severability law.”

Justice Antony Kennedy agreed, to a considerable extent, with Justice Scalia’s argument, suggesting that saving as much of the statute as possible was not an act of judicial restraint. “We would be exercising the judicial power if one Act was – one provision was stricken and the others remained to impose a risk on insurance companies that Congress never intended. . . . That, it seems to me can be argued at least to be a more extreme exercise of judicial power than . . . striking the whole.” Justice Alito, too, worried about the plight of insurance companies if the Court were to strike the individual mandate and sever the rest (as if it were more important for the Court to preserve the lobbying bargain struck by AHIP than the law passed by Congress) . Meanwhile, Chief Justice Roberts argued that since the Act serves both the goal of patient protection and affordable care, the conventional severability inquiry, which dictates saving statutes to advance the statute’s basic purpose, breaks down. Judicial restraint in the hands of the Court’s conservatives facing a statute they do not like means striking down as much as possible, rather than saving statutes that are clearly within Congress’ constitutional power.

To find any Supreme Court cases that support this basic approach to severability, one has to go back, far back to the dark days of the Lochner era, when a narrow majority of the Supreme Court used a cramped understanding of Congress’ Commerce Clause and Tax and Spending powers together with severability doctrine to strike down congressional efforts to end the depression and relieve the human suffering experienced during the Great Depression. In cases like the Court's 1936 ruling in Carter v. Carter Coal, which invalidated by a 5-4 vote the New Deal Congress’ effort to regulate the coal industry, the Court seized on severability to destroy, not save, otherwise constitutional statutes that conflicted with the Justices’ laissez-faire preferences. In language reminiscent of yesterday’s proceedings, the conservatives of the Lochner-era argued that the comprehensive regulatory statutes pushed by FDR and enacted by the New Deal Congress had to fall as a whole; the parts were designed to work together and hence too inter-connected to permit severability of the constitutional provisions. Since then, the Court has repudiated this basic approach time and again, emphasizing that the guiding principle of severability doctrine is to save and not to destroy. As Justice Sonia Sotomayor explained during yesterday’s argument, the law’s presumption is strongly in favor of severability because of basic principles of democratic governance that demands that court stay out of the business of lawmaking.

The Court’s conservatives now find themselves on the edge of a precipice. If the conservative Justices follow the path of the Lochner-era Court by first second-guessing Congress’ express constitutional powers to regulate interstate commerce, tax, and spend money in the general welfare and second by invoking severability doctrine to strike down the entire Affordable Care Act, what principled justification could they possibly give to their American people for their judicial activism and disregard for our nation’s basic constitutional and democratic structure? One thing is certain – after Citizens United, the institutional legitimacy of the Supreme Court, not to mention the legacy of John Roberts and Anthony Kennedy is very much on the line. The whole world is watching, and the question now is whether the conservatives on the Court will heed or break from our established constitutional traditions.

David Gans is the Director of the Human Rights, Civil Rights & Citizenship Program at Constitutional Accountability Center. This post is cross-posted at Text and History.


What is ironic to me, about the conservative justices' ideology here, is that when it fits their political beliefs they are cheerleading for the free market of democracy to take care of things we don't like.

This was implicit in the Citizens United ruling. Justice Scalia quipped, not long after the ruling in that case, that people can just turn off their TV's. In other words, if we don't like how some choose to express their 1st amendment rights, we the people can just tune them out. Thus, democracy can provide relief to the 1st amendment, rather than the Court.

However, in this case, they seem resistant to be willing to allow the same logic. Here, they are essentially saying that democracy is not a sufficient limiting principle for the decision. All of a sudden, democracy does not work and the Court must step in.

It's plainly inconsistent.

The severability issue is hardly the only example of breathtaking intellectual dishonesty displayed over the last few days. Consider the demand for a "limiting principle":

1. It seems to be a demand for something *outside* the Constitution. After all, inside the Constitution the commerce power is a *grant* of power. It should be up to the opponents of the law to identify the text which limits that power.

The demand for an "outside" limit comes after 60 years or so of conservative rhetoric in which they've argued that *nothing* outside the Constitution can affect the actual language of the document itself.* Thus, they've turned the whole basis of conservative jurisprudence on its head in order to oppose this bill.

2. Defenders of the ACA have repeatedly pointed out "limiting principles" both inside (BoR, Lopez, Morrison) and outside (the unique nature of the health insurance market) Constitution. Rather than respond, "ok, those proposed limits aren't good enough" -- which an honest person would do -- the response has been to continue to demand that the defenders come with something, anything, that would limit Congressional power.

I don't know what the final ruling will be. I'm on record as predicting a 5-4 opinion striking down the mandate, but that's not certain. What was disturbing about the argument (aside from Verrili's poor performance) was that the Justices were willing to consider seriously arguments which should have been dismissed out of hand as frivolous.

*That's not to say they're right about this, just that they're contradicting themselves.

Does anyone here have an answer to Justice Scalia's question during oral argument: Is there any precedent for preserving the remainder of a statute after the funding provision (or any other equally important part) of the legislation was found unconstitutional?

I can't think of one.

What makes this case even more unusual is that the government has already conceded that Obamacare's destruction of the insurance model by allowing ill people to jump on and off of insurance cannot be sustained without the government also compelling young and healthy people to buy insurance to pay for the ill.

Actually, the government falls far short here because Obamacare imposes a large array of mandatory expansions of coverage and then vests HHS with the power to add as many more as it pleases. All of this was to be paid with the individual mandate.

The insurance industry originally agreed to support (or at least not to run Harry and Louise ads against) Obamacare's government designed Christmas tree policies so long as the government imposed substantial fines to compel millions of additional customers to buy insurance to pay for it all. When the Senate went wobbly and lowered the tax penalties to mere nuisance fines, the insurers bailed and joined the Tea Party opposition to Obamacare. The insurers knew that Obamacare would bankrupt them if young and healthy people were not compelled to pay for it.

I suspect that the government's selective concession here was actually meant to blackmail Kennedy into agreeing to support the individual mandate to avoid denying insurance to those with preexisting conditions while leaving the rest of Obamacare intact if Kennedy did not submit to the pressure.

This scheme backfired when Kennedy did not submit to the pressure, recognized that there were hundreds of mandates unidentified by the government to be paid for by the individual mandate and saw killing the entire act as a far more reasonable holding than having the court troll through 2,700 pages of vague written legislation attempting to redesign the law to make it solvent.

If Kennedy or Roberts does not go wobbly and find Obamacare entirely unconstitutional because there is no reasonable way to slice and dice the law, this is less a function of the return to Lochnerism than the structure of the law itself.

Obamacare is classic German Zwangswirtshaft socialism where the government leaves ownership nominally in private hands, but still directs every facet of the industry as if it was nationalized. And like classical socialism, Zwangswirtshaft played havoc with the economy each time the Germans used it during WWI and WWII. The government employed one short term fix after another to correct the government imposed price distortions until the entire economy collapsed. Removing the individual mandate eliminated the main Obamacare short term fix to correct its destruction of the insurance model and will destroy the economy (or at least the insurance industry) if the rest of Obamacare is allowed to stand.

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Certain conservatives justices are on principle wary of democratic decision-making in certain cases even beyond the text, such as Kennedy and Thomas, so the problem there is really Scalia and his supporters.

Scalia is just showing his age. He has become an irascible old geezer riding his doctrinal hobbyhorses. He no longer does his homework, his rants are more and more detached from the subject matter of the cases, his language less precise and more intemperate. I think Alito's growing separation from Scalia, which began with his comment last term that what Scalia wanted to know was whether James Madison liked video games, comes not just from Alito's finding his voice but from Scalia's losing his.

I am convinced the Scalia and Ruth Bader Ginsburg have a pact to tell each other when it is time to retire. They may even have an agreement to retire together to allow the simultaneous appointment of a liberal and a conservative. But she clearly enjoys having the power to influence the affairs of the day. So we will have to rely on the grim reaper. We hear many stories about Scalia's favorite pizza, none about his time in the Court gym.

"Certain conservatives justices are on principle wary of democratic decision-making in certain cases even beyond the text, such as Kennedy and Thomas, so the problem there is really Scalia and his supporters."

But isn't the desire that as much of the law be retained as possible actually just a way of circumventing the democratic results of the election which followed the passage of the law, defeating enough members who'd voted for the law that nothing remotely like it would be reenacted if the Court struck it down?

It's not opponents of this law who don't like democracy. It's the law's supporters, who don't want that election to have any consequences, and who ideally want the Court to turn the law into something Congress could never have enacted even before the voters spoke.

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Congress could never have enacted even before the voters spoke"

The public likes chunks of the law. It was not seen as a problem by most, including Republicans and libertarians who long promoted the idea, that the so-called "mandate" was unconstitutional.

Akin to a coach who has to deal with new OT rules, the idea that all the good stuff would not have passed with the exact same monetary burden with the word "tax" a bit more explicitly stated is a game of "let's pretend."

Instead of pretending to know, the courts can strike down the problematic provision and let Congress decide what to do, the fact the law needs various funding provisions to work long term requiring some agreement at some point on the matter.

Or, we can toss down a large law, including lots of stuff that are totally uncontroversial, even though long held precedent doesn't require it, even though there is no reason to think it wouldn't have passed (but since confirming judges that eventually get 90 votes is so hard, good luck starting from square 1).

The 2010 was not a ballot initiative on the PPACA. We can pretend otherwise, of course. Or, SCOTUS can simply upheld the law, since it is patently constitutional. That would save a lot of trouble.

Of course the public likes chunks of the law. It's a multi-thousand page abomination! There's something in there for anybody under the sun to like.

Everybody likes ponies, to use a popular liberal analogy. Very few people buy 'em. Why?

Because they don't like them enough for them to be worth the cost.

A law that addresses something dealing with 1/6 of the economy with various odds and ends tossed in (like Indian health centers or the like) takes a lot of space.

The changing of the name of a post office can take a few pages. The Rube Goldberg nature of our government only furthers the verbiage. To pass anything of substance, you have to put more stuff in to satisfy those last votes. A straight democracy would help there, but you are not really a fan, I hear.

Governing 300M is complicated.

Over 50% of the population likes this law or one that had the government controlling even more. The latter I doubt would entail less verbiage.

And, the law has stuff for various interest groups. You mean like legislation from time immemorial in any government run by consensus and interest groups?

No, a law dealing with 1/6th of the economy doesn't have to be a several thousand page monstrosity. You can fix this little part. Then that little part. Then that little part. You can have up/down pieces on logically unrelated parts of the policy.

The very claim that sections are severable is a claim this is true. If you really needed several thousand pages in one bill, then the bill SHOULD stand or fall as one piece!

The problem is that any bill of substantial size is a set of compromises, which generally could never have passed with part removed. Strike down one part, leave the rest in effect, and you have instituted a set of compromises the legislature did not enact.

In this case, we have mandates on the insurance industry which would drive insurance companies to bankruptcy, or force them to quit the industry, and a provision, unconstitutional, designed to prevent this disaster the bill itself creates from occurring. The bill could never have passed without the mandate, because not enough members of Congress wanted to destroy this industry.

You want the Court, if they decide the mandate is unconstitutional, to transform the law into something which could never have passed Congress, a law which will destroy a whole industry.

Or maybe you figure they should just go through the bill with a red pen, and exercise the line item veto they've already said the President can't constitutionally exercise? Turn themselves into a legislature, and write their own several thousand page bill that was never passed by Congress?

No, except where Congress has explicitly stated clauses are severable, laws should be struck down entire if any part is found unconstitutional. The Court should not act as a legislature.

That isn't how major change happened in this country repeatedly. The 14A, e.g., is a major change. We didn't pass some little part etc.

The structure of our government at the moment makes tinkering that much less possible. This very law allows tinkering, after all, if the government wishes. The aspects don't happen all at once. They are tiered. Even the penalty doesn't kick in until 2014 and not all at once. This provides time to tinker. If there is a desire.

The law provides various means to deal with costs, the minimum coverage provision, the penalty of which not in place for years, but a part. The edifice in no way falls if one part is taken away now. Again, ignore me as you wish, many health experts noted this and thirty minutes of the argument was focused on upholding what the 11th Cir. did on severing the one part.

The rules of severability, as Jon notes, was in place for years. Congress acts with various legal rules in place, including the reality that courts sometimes sever part of the law, even though the law as a whole might not have passed unless every last bit was in there.

You might not LIKE this, just as you don't like omnibus legislation that passed long before you or Shag was born, but that's how things work in our system. There is nothing unique here, including the public not understanding major legislation or not liking the hard part while liking all the nice stuff. People support trials, but never want to go to jury duty too.

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Another thing is that clearly you oppose certain policy approaches. Like someone who does a bunch of things at once, you can break down the things, and you would oppose the various bits too. Stripped to the core, the matter here will STILL take a lot of words. Also, certain parts are clearly interconnected. Nor is verbiage the people's problem. If they like the result, people are fine with words. You have to pick your opposition here, not try to have it all ways.

"That isn't how major change happened in this country repeatedly. The 14A, e.g., is a major change. We didn't pass some little part etc."

You're comparing the 14th amendment to a 2700 page bill nobody read in it's entirety before it was enacted?

Oh, wait, it's April 1st. Good one!

Brett might not be aware in his mentally gaited community that while the 14th Amendment is much shorter than ACA's 2,700 pages, the interpretation/construction of the 14th Amendment has been constantly challenged for 150 years or so and continuing. So whether mine is longer than yours or vice versa is not the answer. ACA attempts to address a serious health care problem that has been festering since at least the days of Teddy Roosevelt, being treated prior to ACA in piecemeal fashion, despite the fact that every other highly industrialized democracy provides basically universal health care. ACA is not "prefect," but it gets us in the right direction. Alas, there is no balm to soothe Brett's long suffering case of Wick-burn.

"You're comparing the 14th amendment to a 2700 page bill nobody read in it's entirety before it was enacted?"

You wanted to deal in small steps and I pointed to a major example of how this country repeatedly did not do that. It is merely, as I said, an example.

Want something else? How about the civil rights acts of the 1960s? Do you think they were read over by everyone with a fine tooth comb? Do you not think they were subject to a lot of litigation? That the result was imperfect in the process because a lot, imperfectly, was done when the legislative will was there? That they didn't do a lot at once? This too will fall by your principles.

Your principles require major changes on how the system always has worked. Being radical is okay, but it's better to actually realize it instead of self-righteously pretending everyone else is being "lawless" etc.

Or, you can just sneer and selectively answer. It's "foolish" in April, yes.

I don't know if Brett was even born - surely he was not an adult - when the Civil Rights Acts of the 1960s were enacted, but he seems to have "hissy fits" with the Acts currently. It's his insufferable, chronic case of Wick-burn (for which ACA might not provide coverage).

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