Severability in California v. Texas: Significance of What Congress Did in 2017?

Jason Mazzone

In her recent interesting post on severability in California v. Texas, Professor Gluck writes that "the fact that the 2017 Congress left the rest of the ACA standing gives us the strongest evidence possible that Congress intended the statute to survive" if the insurance mandate (now without a potential tax penalty) were found unconstitutional. The ACA defenders make a similar point in their briefs. It can't be right. 

We certainly know that in 2017 when Congress eliminated the potential tax penalty it must have wanted to preserve the other provisions of the ACA because that is what Congress actually did. But we can't also say that Congress in 2017 would have wanted those other provisions to survive if the amended (to reduce the potential tax penalty to zero) mandate provision were invalidated. As Vik Amar, Evan Caminker and I recently wrote on this issue:

The ACA’s defenders argue that the obvious and compelling indication of congressional preference is what Congress actually did in 2017. We agree that 2017, rather than 2010, is the proper focus of the inquiry into congressional intent. It was, after all, the 2017 Congress that (under the challengers’ theory) introduced the constitutional infirmity; we think it proper to ask what the Congress at the time the constitutional flaw arose would have wanted the rest of the Act to look like had it foreseen that courts would determine that zeroing-out of the tax penalty made the insurance requirement constitutionally invalid. . . . And when we look at what Congress did in 2017, we see that it left in place every other provision of the ACA. For the ACA’s defenders, that would seem to end the matter.

But this is too quick. The challengers’ severability theory, which must be engaged on its own terms, is essentially that Congress, after eliminating the tax penalty, was counting on the mandatory nature of the insurance requirement (and the resulting sense of legal obligation among the citizenry) to keep the number of people procuring insurance high enough to make the other parts of the Act function as intended. Whether that theory is plausible—as a matter of the post-amendment statutory text or as a matter of reasonable factual economic expectation by Congress—is another matter . . . . But the ACA’s defenders must confront the theory head-on. They cannot avoid the challengers’ argument, which says that invalidating the requirement undermines Congress’s 2017 actual intent, simply by observing that Congress could have repealed, but did not repeal, the entire ACA when it acted three years ago.