FantasySCOTUS Health care law predictions, part 5

December 20, 2011

SCOTUS ClipboardThe last of the four health care law issues presented for prediction on FantasySCOTUS  is the question over the individual mandate’s severability.

After predicting that the Court will most likely rule the mandate constitutional last week, it seems like a pointless discussion.

However, it isn’t for several reasons.

First, FantasySCOTUS has the question as a separate issue, and the Justices may not fall the same way on this issue as on others.

Moreover, if my prediction on the mandate’s constitutionality is incorrect, this issue becomes very important – if the mandate isn’t severable, the entire health care law is invalidated.

Finally, because of the legal complexity of the issue of severability, especially in regards to the individual mandate, this one question is much more likely to have a lasting impact in the legal world than other issues presented in the case.

What do I mean?

Severability comes up when a court rules that a specific provision of a bigger law is unconstitutional.

The court then puts on a surgical mask and decides whether the patient (the law) can be saved, or whether it should just be euthanized (i.e. the entire thing invalidated).

To make this decision, the court looks at whether Congress would have even passed the law without the provision in question.

If so, the court must then decide where to cut.

There are several principles that help to determine how and where to cut.

Instead of getting into all of the Supreme Court case law, I’ll leave it at a couple of quick points:

  • Cut those parts that “can’t fully operate as a law” without the unconstitutional provision; and
  • cut as little as you have to.

And that’s if there isn’t a severability clause in the legislation (a section that states something like “if any one section of the law is ruled unconstitutional, the rest of the law stands”).

Of course, it doesn’t change too much even if there is a severability clause.

Yes, the presumption is in favor of severability, but the court still determines if and where cuts need to be made.

I bring all this up because it’s central to how the Justices will rule on this issue.

Namely, a major part of severability determinations involves analyzing legislative intent, which, as many of you know, is something textualists like Scalia and Thomas absolutely abhor doing.

There was quite a bit of this analysis (some would say an inapt amount) in the only ruling that has found both the mandate unconstitutional and unseverable from the rest of the Affordable Care Act: Judge Vinson’s.

That case is the one that made it to the Supreme Court, except that the appellate court reversed Vinson on the severability issue, finding that Vinson “placed undue emphasis on the Act’s lack of a severability clause.”

Actually, it was because he read too much into Congress’s intent on the matter, something that SCOTUS’s textualists won’t do.

Does that mean that Scalia and Thomas won’t rule for unseverability?

Not necessarily, but in avoiding a lengthy analysis of congressional intent, they will have to perform some impressive mental gymnastics to get there.


Because only a small percentage of the 2,700 pages of reforms actually relates to health insurance, much less the individual mandate.

Thus, without an exceptionally heavy reliance on Congress’s intent in removing the severability clause, there’s really no rational way to reach the conclusion of complete unseverability.

What about the provisions having to do with health insurance?

As the appeals court pointed out, those provisions (the “guaranteed coverage” and “coverage of preexisting conditions” provisions for instance) do not reference the individual mandate whatsoever and can “fully operate as a law.”

Therefore, they aren’t severed along with the individual mandate.

That doesn’t mean SCOTUS will see things that way, but as I discussed in a post a few months back, the individual mandate is the most palatable piece of the ACA to health insurance companies and businesses on the whole.

Assuming SCOTUS follows its current pro-business trend, the Justices will only strike down the individual mandate if they can take most or all of the law with it (which, by all honest legal reasoning, they can’t).

Consequently, the mandate will likely stay in along with the rest of the law.

You can chalk this one up as another reason why the Court will uphold the mandate’s constitutionality: the individual mandate should be the last thing to go, but unless it isn’t severable at all (a very hard sell), it will be the first.

But how will the severability vote come down?

The Justices will vote unanimously for severability (but I suspect that Thomas and/or Scalia will dissent in part or at least concur on the issue).

National Federation of Independent Businesses v. Sebelius (Is the Mandate Severable?)

Question Presented

The question presented is whether the ACA must be invalidated in its entirety because it is nonseverable from the individual mandate that exceeds Congress’ limited and enumerated powers under the Constitution. (Question #1 from NFIB Petition)

Lower Court’s Decision

The Court of Appeals for the 11th Circuit held that the ACA need not be invalidated because it is inseverable from the unconstitutional individual mandate. A vote to AFFIRM means that YES, the mandate is severable. A vote to REVERSE means that the mandate is not severable.

My Prediction

Unanimously affirm.

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