Thursday, June 14, 2018

ACA's Former Foes Agree DOJ/Texas Have Severability Wrong - An Unusual Amicus Brief That Says a Lot about the Case's Lack of Merit

Abbe Gluck

Today, five scholars who have often opposed one another publicly about the Affordable Care Act--Jonathan Adler, Nick Bagley, Ilya Somin, Kevin Walsh and I--filed a brief together in the district court of Texas, opposing the lawsuit brought by a group of states to, once again, strike the entire Affordable Care Act down.  This is the same lawsuit the United States last week shockingly declined to defend.  The unholy alliance, so to speak, of formal opponents, should be powerful evidence--no matter how you feel about the ACA itself-- of how wrong on the law the Texas/DOJ argument is.
The crux of the case--and the focus of our brief--is severability; the question whether, if one provision of the ACA is struck down, the rest of the 2000-page law should fall as well. Texas argues that, by eliminating the tax penalties associated with the insurance-purchase mandate, Congress in its 2017 tax reform law eliminated the constitutional basis for the mandate (remember, Chief Justice Roberts construed the mandate as a tax in NFIB).  The states therefore argue that the court should strike the mandate from the statute and--here is the kicker--kill the rest of the statute with it. DOJ, in refusing to defend, argues that while much of the statute could stand, the key insurance reforms that Congress left in the ACA when it eliminated the tax penalties --namely the requirements that insurers must accept everyone regardless of health condition at relatively equal rates-- should go with the mandate in the name of the severability doctrine. 
This, as our brief argues, is a gross and dangerous misuse of severability. The five of us have disagreed about many aspects of the ACA, including its constitutionality, its statutory interpretation, its merits as policy and there are many things we still don't agree about.  But the misappropriation of the severability doctrine here is significant enough for us all to agree to leave those questions on which we have differences unanswered for now to set the doctrinal record straight.
An unbroken line of Supreme Court cases for decades makes crystal clear that the touchstone of severability is congressional intent. That is, what would Congress had done had it known a court would eliminate a provision of the statute? Of course this question is silly and irrelevant in this context because it was Congress, not a court, that did the eliminating itself. Moreover, in doing so, Congress expressly left the rest of the statute standing--including those key insurance protections the United States argues should fall in the name of congressional intent. Game over. No guessing on loose conceptions of congressional intent is needed when we have duly enacted statutory text answering the question. 
The Texas/DOJ position asks the court to effectively usurp legislative power and substitute its own policy views of the ACA rather than applying duly enacted law. Such a decision would be dangerous for future cases and muddy the severability doctrine-- a doctrine based on separation of powers--and turn it into a tool of judicial activism. 
I was honored to be among these scholars of different viewpoints who came together in the name of the law. 
A taste of the brief, which you can read in full here:
The cornerstone of severability doctrine is congressional intent. Under current Supreme Court doctrine, a court must offer its best guess on what Congress would have wanted for the rest of the statute if a single provision is rendered unenforceable. But this guessing-game inquiry does not come into play where, as here, Congress itself has essentially eliminated the provision in question and left the rest of a statute standing. In such cases, congressional intent is clear—it is embodied in the text and substance of the statutory amendment itself. Under these circumstances, a court’s substitution of its own judgment for that of Congress would be an unlawful usurpation of congressional power and violate basic black-letter principles of severability. Yet that is what the plaintiff States and the United States invite this Court to do.

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