By Jamie Durling & Garrett West, recent graduates of Yale Law School*

Last week, the Department of Justice made national headlines when it revealed that it would not defend major parts of the Affordable Care Act against the latest constitutional challenge. Other commentators, including Nicholas Bagley, Marty Lederman, and Leah Litman and Ian Samuel, have already discussed the merits of the case, the DOJ’s severability analysis, and the legitimacy of the DOJ’s decision to decline to defend the ACA. We would like to focus on a different question: What’s the right “remedy” for the violation?

Suppose then that the plaintiffs have standing and that either the challengers or the government is right on the merits (although we have doubts on both counts). The plaintiffs argue that the individual mandate is inseverable from the rest of the ACA and thus that the court should invalidate the entire law. The DOJ argues that the individual mandate is inseverable from certain key provisions of the ACA—specifically, the community-rating and guaranteed-issue requirements—and thus that the court should invalidate all the inseverable provisions.  

But in a recent essay in The University of Chicago Law Review Online, we argued that the right remedy is not to strike down the individual mandate, let alone some or all of the rest of the ACA.  Instead, the court should strike down the repeal of the mandate’s penalty. Or in other words, it should reinstate the tax. (Notably, several intervening states defending the ACA briefly make a similar argument in their response to the lawsuit.)

This proposal might seem constitutionally dubious. After all, we don’t normally think that courts have the power to impose taxes; that’s Congress prerogative. But the case for reinstating the individual mandate penalty is surprisingly strong.

First, consider the Supreme Court’s severability precedent. The Court has long refused to give effect to statutory amendments that render an existing law unconstitutional. The principle is put most clearly in Frost v. Corporation Commission of Oklahoma:

It is conceded that the statute, before the amendment, was entirely valid. When passed, it expressed the will of the legislature which enacted it. Without an express repeal, a different legislature undertook to create an exception, but, since that body sought to express its will by an amendment which, being unconstitutional, is a nullity and, therefore, powerless to work any change in the existing statute, that statute must stand as the only valid expression of the legislative intent.

Note that this principle—that an impermissible amendment cannot alter the permissible statute’s original meaning—has an even older historical pedigree. It goes back at least as far as Chief Justice Marshall’s statement in Marbury v. Madison that “a legislative act contrary to the constitution is not law.” And perhaps most significantly, the Court has followed this approach of severing unconstitutional amendments even in cases where the result is to reinstate a tax, as all nine members of the Supreme Court recognized as recently as the 1990s.

Second, consider the separation-of-powers values that severability doctrine is supposed to promote. Severability doctrine requires a judge to ask what law (if any) Congress would have passed if it had known that the law it wanted to pass was unconstitutional. This approach lets Congress write the laws, not the judiciary, and it promotes values of judicial restraint.

The challengers and DOJ are asking the court to “blue-pencil” in an outcome—i.e., the repeal of the ACA or the ACA minus key provisions—that Congress didn’t write into the law. Worse, Congress couldn’t have written it into law. We know this because Congress has tried on numerous occasions to repeal the ACA, but couldn’t muster the votes to do so. As a result, it had to settle for repealing the mandate’s penalty through a narrow budgetary procedure called “reconciliation.” The DOJ essentially concedes this point in footnote 4 of its brief. But contrary to what the DOJ may be implying, the fact that a majority of Congress subjectively wanted to repeal the ACA is irrelevant. The relevant question is what Congress could have enacted from an objective perspective.

By contrast, reinstating the tax penalty returns us to a law that Congress did enact: the original ACA. This solution avoids nebulous inquiries into Congress’s subjective intentions. And it would allow the judiciary to avoid doing Congress’s job of passing and amending legislation. This perspective may seem to privilege the handiwork of past Congresses over the present Congress, but that’s the inevitable effect of the Constitution’s bicameralism and presentment requirement. Just as past Congresses could only make new laws by enacting them in the first place, so too the present Congress may only amend past laws by passing real statutes. And if Frost’s maxim (that “an amendment which, being unconstitutional, is . . . powerless to work any change in the existing statute”) is a correct statement of law, then the present Congress must also pass a constitutional statute in order to amend past laws.

Justice Thomas’s recent concurrence in Murphy v. NCAA provides additional support for our emphasis on Congress’s objective work-product. In Murphy,Justice Thomas wrote separately to express his “growing discomfort with [the Court’s] modern severability precedents.” He worried that these precedents require courts “to make a ‘nebulous inquiry into hypothetical congressional intent,’” which “does not follow basic principles of statutory construction.” “Because we have ‘a Government of laws, not of men,’” noted Justice Thomas, “we are governed by ‘legislated text,’ not ‘legislators’ intentions’—and especially not legislators’ hypothetical intentions.” Here, the legislated text is the original ACA, not some hypothetical ACA that Congress never enacted.

In some severability cases, it may be difficult if not impossible to avoid subjective inquiries. But the latest ACA challengeis not one of those cases. If the court does decide to reach the merits, it can avoid this judicial guess-work by invalidating and severing the repeal of the individual mandate penalty. In doing so, it would merely be implementing Marbury’s maxim “that a law repugnant to the Constitution is void.”

*Disclaimer: the views expressed in this post are those of the authors alone

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