One Year Out: Can severability kill 2010’s health reform?

March 23, 2011


(Editor’s Note: As we approach the one-year anniversary of the enactment of the Patient Protection and Affordable Care Act (PPACA) a.k.a. the 2010 Health Care Bill, or “Obamacare” depending on the source, we’ll be looking at the state of the legal challenges to the law in a series of blogs throughout March.  Specifically, we’ll look at pertinent points of law that are at the center of any analysis of the law.)

The first installment on Judge Hudson’s Spending Clause discussion can be viewed here. The second installment on Judge Vinson’s Commerce Clause discussion can be viewed here.

As of today, there have been five decisions regarding the constitutionality of last year’s health care reform law, and two have ruled the law unconstitutional.

Nonetheless, as pointed out in the last two weeks, there are a few differences between the two opinions, one of which is the issue of severability.

Severability refers to whether a particular section of a law that has been ruled unlawful can be individually stricken or if the entire law must be scrapped. 

While both rulings declared the Minimum Essential Coverage provision of the health care law unconstitutional, Judge Hudson’s opinion in Virginia found that the provision was severable from the rest of the law, while Judge Vinson’s opinion in Florida found the opposite.

Hudson’s opinion was relatively succinct, and regularly cited a wide spectrum of Supreme Court precedent on the issue.

It was a more or less conventional legal discussion that arrived at a predictable conclusion: based on several recent Supreme Court cases and on guidelines laid out through over 35 years, the court should cut out as little of the statute as possible.

Vinson’s opinion is different.

Vinson came to the conclusion that the most important factor in determining the provision’s severability was whether Congress would have passed the law without it.  As such, most of the discussion was spent trying to decipher Congress’s (and at times, President Obama’s) intent, and it relied on much less precedent than Hudson’s.

After a lengthy discussion, including on the removal of a severability clause from a bill’s earlier draft, Vinson ultimately decided that Congress would not have passed the bill if the provision weren’t present.

Hudson discussed these issues as well, but his conclusion was much different: the whole bill drafting process was such a mess that it would be impossible with any level of certainty to extrapolate Congress’s intent.

Both Vinson and Hudson also discussed the complexity of the bill in deciding if they could easily sever the provision.  However, while both acknowledged that the bill was very lengthy and complex, and contained provisions not related to health care, they reached different conclusions.

While Hudson took his cues from precedent that dictated as much of the bill as possible be left intact, Vinson decided that it would take too much time to go through it in its entirety.  Thus, Hudson only struck the one provision while Vinson struck down the whole thing.

So which way is right?

As usual, the answer is probably somewhere in the middle.

The provision does not affect so much of the rest of the law as to make it unrecognizable as suggested by Vinson, but it is necessary to many other provisions not mentioned by Hudson (for instance, many of the restrictions put on insurers barring discrimination).

The only ones who can decide for sure are those sitting on the Supreme Court. Assuming the Court rules the provision unconstitutional, it’s anyone’s guess how the severability issue will come down since the Court is not bound by precedent.