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.
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.