Commerce Clause Findings Are Not Inseverability Clauses: The ACA Returns to Court

Abbe Gluck

 The future of the entire 2,000-page Affordable Care Act again lies with the Supreme Court, which will hear California v. Texas one week after the election.  As I’ve detailed elsewhere, the arguments in California are not only a perverse application of settled statutory interpretation doctrine; they also seek an unconstitutional judicial usurpation of congressional power. That they have gotten this far is a threat to the legitimacy both of the Court and of its settled doctrines of statutory interpretation, including and especially textualism.

I have an Essay out in the Yale Law Journal Forum today that offers the deepest dive yet into the statutory weeds of the ACA to illustrate the profound weaknesses of what has become the challengers’ central argument: namely, that statutory findings inserted into a single subsection of the ACA and expressly described by Congress as put there to justify Congress’s Commerce Clause power now serve as an explicit directive from Congress about something entirely different—an “inseverability” order that courts are to strike down the entire ACA if the insurance-purchase mandate is invalidated.  As a matter of text, statutory location and organization, and the way Congress actually drafts explicit inseverability clauses elsewhere in the U.S. Code—this is all Textualism 101--the argument has no basis.

Here is an excerpt from the Essay, which goes into deep statutory detail about each of the points mentioned—if you want more background on severability, read past the excerpt:

The challengers argue this despite the fact that those findings are specific to one subsection, of one part, of one subtitle, of the ten-title law. They also argue this despite the fact that the language they seize on is boilerplate language that Congress has used in scores of other statutes, not for the purpose of severability, but to justify Congress’s commerce power. They argue this even though Congress expressly tells us, in the subsection itself and also in the subsections directly above and below it, that the findings are indeed directed at establishing congressional authority under the Commerce Clause.

And, they argue this even though, reading the entire subsection literally as they ostensibly would have us do, it would mean that not only the ACA goes down but also that the nation’s entire pensions and employee benefits regulatory system—the Employee Retirement Income Security Act of 1974 (ERISA) statute—goes down too.

Finally, and most importantly, they argue that Congress has actually spoken to the issue, even though Congress’s established drafting practices, substantiated by its drafting manuals and enacted examples throughout the U.S. Code, make clear that when Congress actually writes an inseverability clause, it is unmistakably explicit about it and writes with specific language. Congress used none of that language in the ACA.

The Court deploys a “strong presumption” of severability because striking down whole statutes is the most invasive and destructive of all statutory-case remedies. Congress mirrors that presumption by inserting explicit inseverability clauses in only a small number of select statutes, because of course Congress does not generally hope that all of its work product will be struck down. Inseverability is a nuclear bomb. Congress does not hide it in mouseholes.

          In 2012, at oral argument in the first existential challenge to the ACA, NFIB v. Sebelius, Justice Scalia famously compared going through the entire ACA to cruel and unusual punishment.  He said: “What happened to the Eighth Amendment? You really want us to go through these 2,700 pages?”

        Of course we do. The Court should either stand by its textualism or dump it.  

 What is particularly disheartening about California is that the findings should not be at issue at all. Instead, this should be one of the easiest severability cases the Court has ever had.  The basic question in the case is what should happen to the ACA if the Court decides the individual-insurance-purchase mandate is no longer a tax and hence unconstitutional now that Congress, via the 2017 Tax Cuts and Jobs Act, has reduced the tax penalty for noncompliance with the mandate to zero (This comes up because, in NFIB, the Chief Justice’s controlling opinion upheld the mandate under the taxing power, but not under the commerce power.). The mandate has never been fully enforced and its future matters little. What matters is that challengers are arguing the mandate is so intertwined with other provisions that the entire ACA now falls too. The reason the case should be simple is that the Court’s settled severability doctrine, reaffirmed twice this past term, “strong[ly]” presumes Congress intends statutes to stand—to be severable from offending  provisions—unless Congress says otherwise. Sometimes this inquiry puts the Court to a goose chase, in Justice Thomas’s words, requiring a “nebulous inquiry into hypothetical congressional intent.” But Congress’s intent is as explicit here as it could possibly be from Congress’s own official actions: it left the ACA standing when it reduced the penalty. Case closed.

         The challengers have abandoned arguments (as they must, due to clear countervailing evidence from 2017 and forward) that the ACA cannot function without a mandate. And they do not pretend—because there is no evidence in support and Leader McConnell's words are expressly to the contrary—that Congress in 2017, after more than 70 attempts to repeal the ACA thought it was actually killing the whole thing when it reduced the mandate penalty. (Imagine the Court striking down the ACA anyway—even after that. It Is hard to imagine a greater usurpation of legislative supremacy.)

         So this is not a case about hypothetical congressional intent—the kind of inquiry that sometimes makes severability cases difficult. All the challengers have left is to argue, as the Essay explains, is that "Congress has said the mandate cannot be severed and that those words now must be followed, come what may, even if the 2017 Congress did not realize it was destroying the law. So, the precise question is whether these findings are really how Congress speaks about inseverability." The Essay's deep dive makes clear the answer to that question is a resounding "no."

               Elsewhere I’ve written about the ACA’s remarkable entrenchment and resilience. This is not the place for those points, even though it is also remarkable that California has attracted an unprecedented array of the ACA’s most prominent legal opponents as powerful critics of the case, including Jonathan Adler—one of the architects of the last major ACA challenge, King v. Burwell, who this time filed an amicus brief with me.

Justice Frankfurter famously recounted the three rules of statutory interpretation: “(1) Read the statute! (2) Read the statute! (3) Read the Statute!”  As I write in the Essay: “The challengers’ textualism is not real textualism: it ignores the ACA’s statutory organization, the words of the ACA itself, and Congress’s consistent drafting practices across the U.S. Code. The Court's textualists can do better.”

More to come.