//  6/14/18  //  Commentary

Today, five scholars who have publicly taken opposing positions in litigation pertaining the Affordable Care Act—Jonathan Adler, Ilya Somin, Kevin Walsh, and the two of us—filed a brief together in the Texas case that’s seeking strike down the entire Affordable Care Act. This is the same lawsuit the United States last week shockingly declined to defend. This unusual alliance of formal opponents should be powerful evidence—no matter how you feel about the ACA itself—of how wrong on the law the states and the Trump administration really are.

The case was brought by a group of 20 Republican-controlled states. In their complaint, the states argue) that the Supreme Court upheld the ACA in NFIB v. Sebelius only because the individual mandate was a tax and note that Congress, in the 2017 tax reform law, repealed the penalty for going without insurance. As the states see it, the freestanding requirement to get insurance, which is still on the books, is therefore unconstitutional. Because it’s unconstitutional, the courts must invalidate the entire ACA—lock, stock, and barrel.

That last argument is the crux of the case, and the focus of our brief. The doctrinal question is about severability: if one provision of the ACA is struck down, should the rest of the law fall as well?

The states think so. The Justice Department, in refusing to defend, doesn’t go quite that far. It nonetheless maintains that key insurance reforms that Congress left in the ACA when it eliminated the tax penalty—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. 

But that’s a gross and dangerous misuse of severability, as our brief argues. The five of us have disagreed about many aspects of the ACA, including its constitutionality, how best to construe it, whether it’s good policy, and more. But the misapplication of the severability doctrine is sufficiently worrisome for us to leave those differences behind:

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.

At a time when it’s hard to find bipartisan agreement on anything, we’d like to think that our collaboration on the amicus brief testifies to the outlandishness of the severability arguments in the Texas litigation. And we were honored to be part of this group of scholars. (Thanks too to the team at Morrison & Foerster, who helped pull the brief together.)

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