Wednesday, September 29, 2010

Severability's Double-Edged Sword

By Mike Dorf

As I have previously explained (here and here), under the most straightforward reading of existing Commerce Clause precedents, the individual mandate in the health-care reform law is valid.  To my mind, the fact that Congress has not previously directly required anyone to participate in a market transaction is simply beside the point, given the clear economic impact of failing to purchase health insurance.  And that's to say nothing of the law's sustainability as an exercise of the taxing power.

Nonetheless, I have come to think that just as in the run-up to Bush v. Gore, I am underestimating the framing power of politics.  Then, I thought that given the traditional deference shown to state courts on matters of state law, the SCOTUS wouldn't take the case.  I didn't reckon with the possibility that ideological and partisan druthers would frame the issue for conservative Justices quite differently than for liberal Justices.  (Note first that I'm not saying that the Justices in Bush v. Gore or any other case consciously decided based on partisan grounds.  Note second that I'm sure these and other issues look exactly the opposite to conservatives.  They likely think that there are cases in which the extant law clearly requires conservative results but that the ideological stakes frame the issues differently for liberal judges.  But I digress.)

So too with health care, I now think it's just very hard to predict what the SCOTUS will do when the health care law eventually comes to it.  As  Jeff Toobin writes in last week's New Yorker, "the constitutionality of health-care reform must, at this point, be seen as an open question that can be resolved only by the Supreme Court."  (Toobin's profile of Justice Breyer, from which I have taken the quoted language, is only available in the print edition or online for subscribers.)

Here I want to add a thought about severability.  A number of conservative bloggers have noted that the health-care law contains no severability clause.  This is true as far as I can ascertain by searching the text for variants on the word "severable" but I haven't read the whole law line by line.  Assuming no severability clause  lurks in the text, the law would nonetheless be presumed severable.  Supreme Court cases treat invalid provisions of a law as presumptively severable from valid ones--regardless of whether the law in question contains a severability clause.  However, where the invalidation of a single provision of a law would impede the ability of the remaining provisions to function as a whole, the presumption of severability will be overcome.  Would that be true for the individual mandate?

Here the core Commerce Clause argument is a double-edged sword.  The best arguments for sustaining the individual mandate as an exercise of the Commerce Power build on the Comstock  and Raich decisions, in which the Court held, respectively that: a federal law providing for civil detention of prisoners following the completion of their sentences was necessary and proper to carrying out the power to criminalize the conduct that landed them in prison in the first place, even absent any direct authority for civil detention; and federal law could validly criminalize intrastate cultivation and possession of marijuana for personal medical use because of the possibility of legalized medical marijuana finding its way into the illegal market for recreational marijuana.  In each case, the validity of upstream regulations of interstate commerce (or the upstream exercise of some other power in some of the statutes within Comstock's reach) validated the downstream application to activities that might not in themselves amount to interstate commerce (or otherwise regulable acts).  So too with health care, healthy people who fail to purchase health care until they become sick deprive the insurance pool of premium payments needed to spread the risk, thereby undermining the effectiveness of the prohibition on dropping coverage for pre-existing conditions; that makes them regulable even if their failure to purchase health insurance would not otherwise constitute interstate commerce (or even "economic activity" within the meaning of Lopez, Morrison, and Raich).

Suppose the Court were to reject the foregoing argument as a basis for sustaining the individual mandate.  It would be saying that the individual mandate is not necessary to effectuate the prohibition on dropping coverage for pre-existing conditions.  But if that were true for purposes of affirmative power, then it would also seem to follow that the individual mandate is not necessary for severability purposes; the law could function as a whole without it.  In other words, in order to accept the constitutional challenge to the individual mandate, the Court would have to find the predicate conditions for the further conclusion that the (putatively) invalid individual mandate is severable from the rest of the law.  So, as a matter of logic, the scope of the victory that can be obtained by those challenging the mandate is limited; to defeat the mandate they must gift-wrap an argument for sustaining the rest of the Act.

Except of course that my conclusions about severability are subject to the same possible political framing effects as the merits.


Lori Ringhand said...

Interesting. Your framing of the issue made me think of what the Court did in Buckley v. Valeo - by striking down part but not all of a complex regluatory scheme, it created a deeply flawed system that limited candidates' access to money while retaining their need for it.

Michael C. Dorf said...

Another example of the Court seriously chopping up what Congress did is the remedial portion of Booker. After finding the Sentencing Guidelines invalid as written, the Court made them optional.

Hashim said...

Your severability argument works only if the Ct invalidates the individual mandate under the "necessary" prong. If, on the other hand, it invalidates the individual mandate under the "proper" prong--as an improper "commandeering of the people," to use Randy Barnett's phrase--then the Govt's arguments about the necessity of the mandate can be used against it to hold the statute non-severable. So severability truely is a double-edged sword.

Michael C. Dorf said...


I agree, but you have made a point that apparently eluded Professor Barnett. He first places weight on the lack of a severability clause, which as I say in the post, is treated as largely irrelevant by the Court's cases. (I'm not defending that aspect of the Court's jurisprudence, just reporting it.) Barnett then says--on the last page of the version of the article that appears at -- that the govt's argument about the essentiality of the mandate would result in nonseverability "[i]f the individual mandate is either held to be outside existing Commerce and Necessary and Proper Clause doctrine, or found to be "'improper'" as commandeering. But as I say in the post, and as you recognize, if the Court is not persuaded by the govt that the mandate is essential for Commerce Clause purposes, it would likely conclude that it is not essential for severability purposes. So a finding of nonseverability would require the Court to act on Barnett's quite novel "commandeering of the People" theory, which strikes me as unlikely.

AF said...

Professor Dorf,

Doesn't the first half of this post prove that the second half of the post is a waste of time?

Under a good-faith attempt to apply the Court's precedents without changing the direction of the law, the individual mandate is clearly constitutional. Not just because it is part of an overall regulatory scheme, not just because it is a tax, but also because purchasing health insurance is an economic activity. There is no modern holding that even remotely supports the idea that health care reform is unconstitutional under the Commerce Clause.

The challenge to the individual mandate is serious not because of its legal merits but because of its political resonance. And once you assimilate that point, it's kind of beside the point to debate arcane issues like the presumption for severability.

Bob Hockett said...

Suppose that the more conservative members of the Court are unable or unwilling, as they might be, to see past their own frames, even after these are pointed out to them. In such case, I fear, they might prove willing to countenance some such high church rationalization of those frames as Barnett's 'theory' amounts to. I hope I am wrong, but after Bush v. Gore little from these people seems surprising any longer!

Kevin C. Walsh said...

The double-edged nature of the severability issue jumps off the pages of Virginia's complaint. Paragraph 5 states that "[t]he individual mandate is an essential element of the act . . . without which it would not function." That sounds an awful lot like saying that the individual mandate is an essential part of a larger regulatory scheme (Lopez/Raich).