A further note on severability and the ACA

Jason Mazzone

I appreciate Marty’s comments on my earlier post about severability and the ACA. I don’t find Marty's analysis persuasive, however, because he mixes merits with severability. In discussing congressional intent, the central inquiry in most approaches to severability, Marty reasons that no reasonable person would understand the ACA after 2017 to impose an insurance mandate. He says also that anybody who thought it did would know that, under what Marty calls the “de facto holding” of NFIB v Sebelius, such a mandate would be an unconstitutional command. For reasons Vik Amar, Evan Caminker and I have explained here, NFIB did not hold that Congress lacks power to command the purchase of insurance and the Court has not in any other case decided the question either. But we can set that issue aside for present purposes. 

What matters for this short response is that the Court will only get to severability if (in addition to determining the plaintiffs have established injury and the other elements of standing) it finds that there is no saving construction and that the amended ACA can only be understood to command the purchase of insurance in violation of the Constitution. In other words, the severability discussion requires assuming the Court has rejected Marty’s reading of the amended statute—that is, assuming that the Court has found that not only would reasonable people understand the statute to require (unconstitutionally) the purchase of insurance but that there is no reasonable construction that it does not. That is the reading that must be assumed if we are to discuss severability. And the question then becomes: would Congress want the rest of the ACA to survive if its command to purchase insurance (again, that is how the amended ACA must be read for severability to be triggered) were held unconstitutional? What Congress did in 2017 doesn’t answer that question.

(Vik, Evan and I have written about some other aspects of California v. Texas that we think the parties and amici overlook or get wrong here, here, and here. We have two more installments in our series coming soon.)