//  11/5/20  //  In-Depth Analysis

There are a lot of troubling things about California v. Texas, the existential challenge to the Affordable Care Act (ACA) coming to the Supreme Court next week. At the highest level, as I have explained elsewhere in a bipartisan amicus brief, the ACA’s opponents are asking the Court to overrule the democratically expressed decision of Congress—after 70 failed attempts to repeal the ACA—to let the ACA stand without an enforceable insurance-purchase mandate.  At a more detailed level, the ACA’s opponents attempt to mislead the Court, and the public, into believing that Congress somehow inserted an express direction in the law to strike down the entire 2,000- page ACA if the mandate is ruled unconstitutional.  The ACA has no such “inseverability clause.” The language the opponents cite is language Congress used for an entirely different purpose—to explain why the mandate was a permissible exercise of Congress’s commerce power, and those arguments were rejected by the Court in 2012.  The language has nothing to do with inseverability and in fact, is completely different from the words Congress consistently uses throughout the U.S. Code when it actually directs courts to render statutes inseverable.

The Barrett hearings made “severability” a household name, as far as legal doctrines go. Severability is a settled doctrine of statutory interpretation that guides courts in deciding what to do with the rest of a statute when one provision is invalidated. As reaffirmed in two different Supreme Court opinions last term—one by Chief Justice Roberts and one by Justice Kavanaugh—the doctrine mandates a “strong presumption” in favor of severing—that is, excising only the offensive provision—and letting the rest of the statute stand unless Congress expressly indicates otherwise.  Both Justices analogized the rule to a “scalpel rather than a bulldozer,” emphasizing the Court’s “decisive preference for surgical severance rather than wholesale destruction, even in the absence of a severability clause.”

Applied faithfully to the ACA, the severability doctrine clearly dictates that, should the Court invalidate the mandate, the rest of the ACA—which, remember, includes not only pre-existing conditions protections, but also the Medicaid expansion; the new Medicare drug benefits; the insurance subsidies that benefit families making up to some $100,000 a year; the prohibition on annual and lifetime caps and copays for preventative care and the allowance for young adults to stay on parents’ plans for everyone (not just those on government programs); the public health provisions; the generic biologic provisions; and so much more—all survives.

But the opponents misleadingly assert that Congress said otherwise, pointing to a congressional-findings section in the ACA that is not about severability at all, but rather was expressly inserted to justify Congress’s power under the Commerce Clause—and that is arguably null and void at this point since the Court rejected the Commerce-Clause grounding for the mandate in NFIB v. Sebelius in 2012.  The findings relied on are buried in one subsection, of one part, of one subtitle, of the ten-title ACA—they have nothing to do with the survival of the rest of the Act. If that weren’t enough, the language in the findings that ACA opponents cite is boilerplate text that Congress has used in scores of other statutes, not for the purpose of severability, but, again, to justify Congress’s commerce power. And to make the absurdity of the argument as clear as it could be, reading the entire subsection as the opponents would mean that not only the ACA goes down but also that the Public Health Service Act and the nation’s entire pensions and employee benefits regulatory system—the ERISA law—go down too.

Our textualist Court pays attention to Congress’s words, a statute’s organization, and how Congress routinely expresses itself throughout the U.S. Code.  When Congress does direct inseverability, it always highlights that it is doing so, and consistently uses language entirely absent from the ACA’s findings—including always using the word “invalid.” The ACA’s text, combined with Congress’s consistent drafting practices, should make this an easy case for a Court that is proud of its textualism.

What California v. Texas Is About

The way the question comes up in California v. Texas goes back to the day the ACA was signed, March 23, 2010. That same day, opponents brought a constitutional challenge to one provision of the law—the individual-insurance purchase requirement—arguing that Congress’s commerce power did not allow it  (as they characterized it, over objections of health policy experts) to force people into markets they were not already in; the infamous “can-Congress-make-you-eat-your-broccoli” argument.  When the case reached the Court in 2012, the Chief Justice, along with four colleagues, agreed with the challengers on that point but the Chief’s controlling opinion (joined by four different justices) upheld the mandate as constitutional under Congress’ taxing power because it was enforced by a tax penalty. Fast forward to 2017.  After numerous attempts to administratively strangle the law and more than 70 attempts to legislatively repeal it, Congress sought a symbolic win. In the end, it found the votes only to zero-out the penalty associated with the mandate, and did so via the Tax Cuts and Jobs Act of 2017.  ACA opponents now argue that because Congress zeroed out the penalty, the mandate is no longer a tax and so is no longer a valid exercise of Congress’s tax power.

Tax experts dispute the merits of that argument, and 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 either way, if the mandate goes, it matters little as a practical matter. The mandate has been long underenforced; the ACA markets have adjusted to a healthcare market without it; and the 2017 Congress relied on evidence that the ACA did not need a mandate to function when it got rid of the penalty.

Statutory experts and health experts are more interested in the next question—the now-famous severability question.  If the mandate is struck, what happens to the rest of the ACA?

The Findings and Why Arguments Relying on them Are Misleading

Back to the findings.  The severability doctrine is not about the Court’s preferences; it is about Congress’s preferences. The doctrine requires the Court to determine what Congress would have wanted to happen to the rest of the law absent the offensive provision.  Sometimes the doctrine therefore puts the Court in a difficult guessing game about congressional intent. Sometimes the Court also looks to whether the statute can continue functioning without the provision as proxy for, or backup to, its guess as to what Congress wanted.  Neither of those sometimes-difficult inquiries are needed here: The 2017 Congress made crystal clear it wanted the rest of the ACA to remain standing. That should be the end of it. (Opponents make another argument, the fallacies of which Jonathan Adler and I explain here and here, claiming that the 2010 Congress’s views override the 2017 Congress’s. Needless to say, that’s unconstitutional: The views of an earlier Congress cannot be entrenched over the views of a later one. Subsequent Congresses are always allowed to change their minds and amend statutes and pass new laws.)

Justice Kavanaugh’s severability opinion last term, Barr v. American Assn. of Political Consultants, was even clearer on severability, saying that the reason the presumption is so strongly in favor of severing is to avoid the difficult intent-based inquiry.  As such, he wrote: “We will presume that Congress did not intend the validity of the statute in question to depend on the validity of the constitutionally offensive provision unless there is strong evidence that Congress intended otherwise.”

So the ACA case hangs whether there is “strong evidence that Congress intended otherwise.”  I have already explained why 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 (Senator McConnell himself stated at the time “we obviously were unable to completely repeal and replace”).

But to find a thin thread on which to hang, the ACA’s opponents have seized on language in the ACA’s now defunct Commerce Clause findings that reads—as they pull it out of context: “the requirement 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.”  Even on the dubious assumption that these findings somehow still have any validity after NFIB, they have nothing to do with severability.

As I detail in the Yale Law Journal, there are countless things wrong with this argument from a textualist and settled statutory-interpretation-doctrine perspective. The big three are 1) the text: 2; the location: and 3) Congress’s consistent way of expressing inseverability throughout the U.S. Code.

1. Text

The findings provision expressly states, in language opponents nowhere cite—right before the language opponents do cite—that the language that follows is about the commerce clause:

“The individual responsibility requirement provided for in this section … is commercial and economic in nature, and substantially affects interstate commerce, as a result of the effects described in paragraph (2).

 2)EFFECTS ON THE NATIONAL ECONOMY AND INTERSTATE COMMERCE.—The effects described in this paragraph are the following:”

 Those “effects on the national economy and interstate commerce” are what the opponents cite. If that weren’t enough, the language right after the subparagraph that opponents cite repeats that “insurance is interstate commerce subject to Federal regulation.”

In other words, opponents argue Congress was explicitly talking about inseverability, when Congress told us expressly it was talking about something else entirely.

By the way, the rest of the language, in the subparagraph right before the one opponents cite also says the mandate was essential to the markets in which ERISA and Public Health Service Acts operate.  So on their reading, the nation’s entire pension system, and the public health laws (relied on during the COVID-19 crisis) also should be struck down by the Court. That is such an absurdity that it makes the point—already completely clear—that these provisions have nothing to do with inseverability.

2. Location

The subparagraph cited by opponents is not the kind of general statutory-findings section we typically find at the beginning of an Act. Rather, it is one of several, section-specific findings in the 2000-page ACA. These findings are buried at the end of Title I of the ten-title ACA; they sit in the penultimate of seven separate subtitles of Title I and do not even apply to all of that subtitle, the second half of which, in a separate part, deals with the entirely distinct employer mandate. All of the other private insurance reforms sit in different subtitles before the one containing the findings, and the public insurance reforms, including reforms to Medicare and Medicaid, come after it, in different titles, subtitles, and parts of the law. The findings invoked by the ACA’s opponents are sandwiched between the two paragraphs discussed above that explicitly state that the findings are there to “describe[]”how the mandate is “commercial and economic in nature, and substantially affects interstate commerce.” It is nonsense to argue they are a poison pill for the entire law.

3. Congress’s established legislative practices when it writes inseverability clauses

As I have shown in detail, the language of essentiality to markets is boilerplate language that Congress has used in countless provisions in the U.S. Code—almost always for purpose of justifying the commerce power and never for purposes of severability.  That should be enough. But the proverbial nail in the coffin is the fact that Congress has shown as clearly as day that it knows how to draft an inseverability clause and in fact does it the same way every time.

Just last term, Justice Kavanaugh wrote:

“we usually presume differences in language convey differences in meaning. When Congress chooses distinct phrases to accomplish distinct purposes, and does so over and over again for decades, we may not lightly toss aside all of Congress’s careful handiwork. … The Court has likewise stressed that we may not read a specific concept into general words when precise language in other statutes reveals that Congress knew how to identify that concept.” (internal citations omitted).

The House and Senate drafting manuals discourage severability clauses because the Court already applies a strong presumption in favor of severability, but the manuals encourage express inseverability clausesfor the same reason. These clauses are all written in a particular, specific way, as patterned in the drafting manuals.

Every inseverability clause in the U.S Code appears to be broken out by a separate section, subsection or paragraph. Each one uses the same boilerplate language: Every single one uses the word “invalid.” That word appears nowhere in the ACA’s findings. And when only partial inseverability is desired, Congress is very specific (as Congress’s drafting manuals themselves direct), and, again, always use “invalid. My article provides many examples. Here is one:

“NONSEVERABILITY. If any provision of this title or the application of any provision of this title to any person or circumstance is held invalid by reason of a violation of the Constitution, the entire title shall be considered invalid.”

And here is what partial inseverability looks like when Congress actually says it:

“SEVERABILITY. If any provision of this Actor of any amendment made by this Act, or the application of any such provision to an 1person or circumstance, is held to be invalid for any reason, the remainder of this Act and of amendments made by this Act, and the application of the provisions and of the amendments made by this Act to any other person or circumstance shall not be affected by such holding, except that each of subclauses (II), (III), and (IV) of section 205(d)(2)(I)(i) is deemed to be inseverable from the other 2, such that if any 1 of those 3 subclauses is held to be invalid for any reason, neither of the other 2 such subclauses shall be given effect.”

Not only Justice Kavanaugh, but virtually every Justice from Gorsuch to Sotomayor has subscribed to the principle that when Congress shows it knows how to draft something explicitly, the Court will not assume that Congress used less direct language elsewhere to accomplish the same objective.

One final point. The ACA opponents reference the Obama-era DOJ’s 2012 position that the mandate was inextricably linked to some of the insurance provisions. None of that matters here. In 2012, the parties were all trying to guess what Congress would have wanted to happen if the mandate was stuck down.  The 2017 Congress answered that question itself and made guessing unnecessary because the 2017 Congress itself neutered the mandate.  But even the 2012 DOJ position was not that Congress had written inseverability into the ACA with the mandate’s commerce findings. Rather, the DOJ position was that, even though the Commerce Clause findings were not an actual inseverability clause, the findings helped to answer a difficult evidentiary question back then as to what Congress would have wanted to do with the rest of the ACA if the mandate had been struck down. The 2017 Congress, acting with years of data about how the ACA actually functioned on the ground, was constitutionally entitled to reach a different decision and clearly did so.

Justice Kavanaugh warned just last term that “[c]onstitutional litigation is not a game of gotcha against Congress, where litigants can ride a discrete constitutional flaw in a statute to take down the whole, otherwise constitutional statute.”  As textualists well know, and the Court’s own textualists’ questions should show on Tuesday, respecting Congress means understanding Congress, and reading what Congress actually wrote and how Congress wrote it.

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