Sever everything but the exhortation

Joseph Fishkin

At oral argument, we heard about two ways of understanding the individual mandate.  One is that it gives people a choice.  You must do one of two things, the law says: (a) obtain health insurance, or (b) pay a penalty on your taxes.  On this view, the mandate is no different from an ordinary tax law provision such as a deduction or credit.  Your tax bill will be lower by some amount (specifically, in this case, an amount between $695 and $2085, depending on income) if you choose to take an action the government would like to encourage (specifically, in this case, obtaining insurance).

Those challenging the ACA see it very differently.  They say that they are not challenging these tax provisions, but rather, the mandate itself.  That is, the problem is not tax penalties or credits that raise or lower one’s bill, but rather, the fact that the statute requires individuals to buy insurance.  Indeed these opponents often say that the mandate “forces” people to engage in transactions to buy insurance.  What do the words “requires” or “forces” mean, exactly?  If you choose to pay the penalty, the law is entirely satisfied; the government asks nothing more of you.

Those challenging the ACA argue that there is something more.  They say the government is demanding, or mandating, that you choose (a), not (b).  On this view, to put it in the more familiar terms of a speed limit statute, the law does not say, “it’s fine to drive 90 miles per hour, but you will have to pay a special toll of $100 if you do.”  Rather, the law says, don’t do it!  Don’t drive 90 miles per hour.  And if you do, the penalty will be $100 (and suppose the law also says, there will be no possibility of arrest, points on your license, escalating penalties in the case of multiple violations, or any other negative consequences).  In the cold light of cost-benefit analysis, the special toll and the speeding ticket look exactly the same.  But they are not the same, because law has a normative dimension.

This implies some surprisingly deep claims about the normativity of law and the limits of the rational-actor model of how people interact with the law.  But I’m not here to talk about that.  I’m here to ask how this relates to severability.  Why not go farther than Farr (the court-appointed lawyer arguing for greater severability), and hold that even if the mandate must be struck, it is severable from the tax provisions that enforce it?  That is, why not strike, and sever, the mandatory exhortation: strike any suggestion that you “must have” insurance, any suggestion that the government in any way “mandates” that you do (a) rather than (b).  Leave all functional tax code provisions as they are.  Those who do not have insurance will pay $695-$2085.  Choose (a) or (b), either is fine.

Conveniently, as it turns out, the only language in the statute saying that individuals "shall" maintain insurance coverage is located in its own (very short) section, Section 5000A(a).  The tax penalty can be found in Sections 5000A(b) and following.  It would be very straightforward for either Justice Scalia or his law clerks to strike 5000A(a) and leave everything else intact.

For those who think the word "penalty" retains a kind of mandatory sting, as though it's not really ok to choose to pay a "penalty," I would suggest that you are perhaps a bit hung up on labels, but if you must, simply strike the first four letters PENA throughout the statute, leaving in place LTY, an abbreviation for “little tax yearly.”  That way there will be no more “penalty"; those who choose to go without insurance will have to pay a "little tax yearly" in the amount of $695-$2085.

Some of us believe this change would produce... more or less what the statute already says now.  But those challenging the ACA strongly disagree.  They believe the ACA is very different—that it is an intrusive government command that does not give anyone a choice but instead “forces” everyone to buy insurance.  Ok then.  Let’s agree to disagree.  But if the Court agrees with the challengers that the mandate must go, then let’s sever the controversial and disputed bit—the “mandate itself,” separate from the tax penalty—and give all sides what they say they want.  Challengers get an end to the oppressive, individual-liberty-crushing mandate they abhor, the one that threatens to change fundamentally the relationship between the people and their government.  In its place will be nothing but a little tax.  Meanwhile, defenders of the ACA will get all the functional provisions of the law upheld, so that most of the uninsured will have a path to obtaining health insurance and we can begin to slow cost growth and achieve the rest of the law’s substantive aims.  This solution has the great virtue that, unlike every other possible solution to the severability problem (including striking the entire ACA), it causes no unforeseen consequences, raises no specter of effects the law’s sponsors did not anticipate, and requires no further action from Congress.  That last is especially helpful if we think of the “real” Congress, as Justice Kennedy mused at oral argument.

What’s not to like?  Unless, that is, all this talk by the challengers of how they are challenging only the “mandate,” not the tax provisions enforcing it, is just talk, and really it is the entire ACA they are after, by any means they can get their hands on.
Posted 4:33 AM by Joseph Fishkin [link]