Gluck v. Mazzone on ACA Severability

In a pair of posts earlier today, Abbe Gluck and Jason Mazzone discuss the question of whether the remainder of the Affordable Care Act is "severable" from Section 5000A in the event the Supreme Court declares that Section 5000A is unconstitutional by virtue of a 2017 amendment to that provision.

As I understand him, Jason agrees with Abbe on all of the textual and structural arguments she offers for severability in the second half of her post.  So do I.  And therefore in some sense their dispute is much ado about nothing:  There's consensus among us, and virtually every other serious observer, that the "finding" enacted by the 2010 Congress in 42 U.S.C. 18091(2)(I), which remains in the Act after the 2017 amendment--stating that “[t]he [minimum coverage] requirement [in Section 5000A] is essential to creating effective health insurance markets in which improved health insurance products that are guaranteed issue and do not exclude coverage of pre-existing conditions can be sold”--would not require invalidation of the entire Act, or even of the "guaranteed issue" and "community rating" provisions of the Act (the so-called "preexisting conditions protections"), upon a finding that Section 5000A is unconstitutional.

Even so, Jason takes issue with another argument for severability that Abbe flags earlier in her post--namely, that there's no need for the Court to intuit, or assume, what the 2017 Congress would have, or must have, intended with respect to the enforceability of the rest of the ACA if Section 5000A no longer induces individuals to purchase ACA-complaint health insurance--no need to closely parse the text and context of Section 18091(2)(I)--because we already know what the 2017 Congress thought:  It understood, says Abbe, that Section 5000A would no longer coerce anyone to buy insurance, and it nonetheless decided to leave the rest of the Act intact, assuming and knowing full well that all those other provisions would remain operative and enforceable even while Section 5000A was rendered a dead letter.

Jason's retort, if I understand him correctly, is:  Not so fast.  Even if the 2017 Congress deliberately repealed the only means by which the government could enforce Section 5000A's so-called "mandate" to maintain insurance, the Court has to accept (for purposes of severability analysis) the predicate of the plaintiffs' argument, which is that the 2017 Congress assumed the amended Section 5000A would, in fact, cause some or many people to purchase insurance they otherwise wouldn't purchase:  We have to assume, according to Jason, that the 2017 Congress "was counting on the mandatory nature of the insurance requirement (and the resulting sense of legal obligation among the citizenry)"--even in the absence of any enforcement mechanism--to keep the number of people procuring insurance high enough to make the other parts of the Act function as intended."

That's not right.  There's no basis for thinking, or even assuming, that the 2017 Congress thought anyone would feel compelled to purchase insurance by virtue of the 2017 amendment to Section 5000A.

For one thing, no reasonable person would read the amended Section 5000A to create even a statutory "requirement," or "obligation"--a "mandate"--to purchase insurance.  As I've explained in this space countless times and elaborate in my amicus brief with Mike Dorf, the only reasonable reading of the 2017 Amendment--the reading that the President, every member of Congress, every media source, and the entire public have understood from December 2017 to the present day--is that the 2017 Congress and Donald Trump did not enact a "mandate" to maintain insurance; to the contrary, the whole point of that amendment was to eliminate any coercive effect of Section 5000A by offering individuals a lawful choice between purchasing insurance and doing nothing.  (And as Mike and I argue in our brief, that simple holding is enough to resolve the case, without the need even to reach the question of severability.)  There's simply no reason at all to think that the 2017 Congress believed that anyone (no reasonable person, anyway) would purchase unwanted insurance because of a "sense of legal obligation" engendered by the 2017 statutory amendment.

But even if there were some such unreasonable people out there (such as, perhaps, the individual plaintiffs in the case) who mistakenly read the amended Section 5000A to require them to purchase insurance, those people--like the plaintiffs themselves--would also know that such a mandate would be unconstitutional per the views of a majority of the Court in NFIB v. Sebelius.  Indeed, everyone in the case, from the plaintiffs to the federal government to the Justices to the petitioners, agrees that if Section 5000A were a mandate it would be unconstitutional under the de facto holding of NFIB.  Therefore no one would reasonably conclude that they had a legal obligation to purchase insurance for that independent reason (i.e., because Congress lacked any power to require such an obligation), even if they mistakenly concluded had tried to do (or had inadvertently done) just that in its 2017 amendment to Section 5000A.

Either way, it wouldn't be reasonable for anyone to purchase insurance because of a perceived legal obligation to do so resulting from the 2017 amendment: either the statute wouldn't require it (which is correct) or, even if it does, the statute was then outside Congress's authority to enact.  As it happens, and not surprisingly, that's what everyone in Congress reasonably believed, too, about what individuals would do in the wake of the 2017 amendment.  And yet that 2017 Congress, knowing that the amended Act wouldn't cause any reasonable people to purchase insurance, nevertheless chose to retain the pre-existing conditions provisions of the ACA--and the rest of the Act, too.  Abbe is therefore right that that's an independent and sufficient reason to find severability, even without resort to the additional slam-dunk arguments she offers in the bulk of her post.

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P.S.  That said, I think Abbe herself modestly contributes to the misunderstanding by repeating certain common mischaracterizations of what the NFIB Court and the 2017 Congress did.  

She writes, for example, that the Court in NFIB "upheld the mandate as constitutional under Congress’ taxing power because it was enforced by a tax penalty."  But that's not right.  As Mike and I explain, the Court upheld Section 5000A under Congress' taxing power because it concluded that that provision was best read not to contain a mandate, let alone a mandate enforced by a "penalty."  To the contrary, the Court found that the "shared responsibility payment" was a tax rather than a penalty for disregarding a "mandate," and that payment of that tax was one of two options that Congress had made legally available to individuals.

Abbe also writes that "it’s possible the Court will decide the entire case by simply holding the mandate is still a tax, even though its penalty has been dialed back to zero for now (it can always be increased)."  But the "mandate" was never a "tax."  What the Court held was that because the personal responsibility payment was a tax option, there was no mandate at all.  Nor did Congress "dial back" "its penalty" to zero, because, again, there wasn't any penalty--merely a tax.  Finally the 2017 Congress did, indeed, zero out the payment amount, but that doesn't mean that option in Subsection 5000A(b)--pay $0--is "still a tax."  Obviously, it's not a tax--it's an option to do nothing.  And therefore it's not the taxing power that affords Congress the authority to tell people to "do nothing."  Yet, as Mike and I explain, it is well within Congress' authority both to repeal or reduce a tax, and to offer people a lawful choice between maintaining insurance and doing nothing.