Dr. SCOTUS: Severability presents a minefield for the Supreme Court

June 13, 2012

Health Care at the Supreme Court

(Editor’s note: The Supreme Court will rule on the legal challenges to 2010′s Affordable Care Act by the end of June.  Leading up until the end of the month, we’ll be looking at how the law could change with a Supreme Court ruling upholding or overturning the law).

For the first week’s post on the Medicaid expansion, click here.

Next, I’m going to cover severability and save the decision on the individual mandate’s constitutionality for last.

Of course, if the Supreme Court upholds the mandate, the severability question is a nonissue.

Nonetheless, while there is a distinct possibility that the Court will uphold the individual mandate, there’s also a distinct possibility that the Court will strike it down – necessitating the need for the Court to make the severability determination.

The 2010 Supreme Court ruling Free Enterprise Fund v. Public Co. Accounting Oversight Board gives a pretty good overview of current severability jurisprudence:

  • To determine the severability of an unconstitutional provision, “unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.” (Alaska Airlines, Inc. v. Brock)
  • The “normal rule” is “that partial, rather than facial, invalidation is the required course.” (Brockett v. Spokane Arcades)
  • “Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem, severing any ‘problematic portions while leaving the remainder intact.’” Free Enterprise Fund quoting Ayotte v. Planned Parenthood)
  • A court’s ability to rewrite legislation is severely constrained and best left to the legislature. Free Enterprise Fund

So, in other words, to determine whether the individual mandate is severable from the rest of the Affordable Care Act, the Supreme Court would have to find whether Congress would not have passed the Act without the individual mandate.

In addition, the Court looks at whether the rest of the Act is “fully operative as a law” without the individual mandate.

Although Congress’s intent leading up the ACA’s passage is anything but clear, a case could be made either way – either that Congress intended the individual mandate to be the centerpiece of the law, or that Congress would have preferred a mandate-less ACA to no ACA whatsoever.

Determining whether the rest of the Act is “fully operative as a law” isn’t quite as simple.

The Act is so expansive and encompasses so many different areas that are completely unrelated to the individual mandate, such that the majority of the Act is “fully operative as a law” without it.

Thus, on this issue, the Court is unlikely to disturb the waters of existing severability jurisprudence if, after determining the mandate is indeed unconstitutional, it rules the provision severable.

Determining exactly what to sever from the law will give the Court some trouble, though.

Existing jurisprudence instructs the Court to sever as little as possible from the law, and leave the rest of the fixing to Congress.

However, if the Court were to only strike down the individual mandate and leave intact the provisions preventing insurers from denying the elderly or sick – a course most closely following jurisprudence – insurance companies would suffer.

Commentators differ on the degree to which such a decision would injure insurers, but such a consideration is a practical, rather than legal one.

If only the mandate is severed, the rest of the Act remains “fully operative as a law.”

It appears, then, that the Supreme Court must modify existing jurisprudence if it chooses to strike down anything more than the individual mandate.

If it does this, it will most likely take down the provisions imposing restrictions on whom insurers may deny.

The problem with this is that the Court may well be stepping into the legislative arena with this determination – which only becomes a problem for the Supreme Court because it sets an example for the lower courts to follow.

Since the last thing the Court wants are its federal judges “legislating from the bench,” the Court would have to be very careful to make sure that its decision isn’t based on any authority to override Congress’s legislative judgment.

This is going to be difficult because, in making such a decision, overriding Congress’s legislative judgment is exactly what the Court would be doing.

As you can see, the severability question is a potential minefield for the Supreme Court.

How the Court will rule on this issue is anyone’s guess, but it’s also very likely that it may avoid the danger altogether by simply upholding the individual mandate.