Tuesday, February 01, 2011

Severability and Subjective Intent

By Mike Dorf

Judge Vinson's opinion yesterday in Florida v. U.S. Dep't of HHS conformed to the general expectation--based on his comments and questions at oral argument and his other rulings in the case--that he would find the individual mandate of the Patient Protection and Affordable Care Act beyond the power of Congress under the Commerce Clause.  I've said my piece about the substance of that issue before (e.g., here and here), and so will let it pass for now.

Here I want to make a few observations about Judge Vinson's remarkable conclusion that the entirety of the PPACA is invalid, i.e., that the law is utterly non-severable.  I call that a remarkable conclusion because Judge Vinson did not merely hold that the portions of the Act that are intertwined with the mandate must fall with it.  He also invalidated wholly unrelated provisions.  Indeed, he readily acknowledged as much.  Consider this passage from the severability portion of his opinion:
The defendants have identified several provisions that they believe can function independently: the prohibition on discrimination against providers who will not furnish assisted suicide services; an “Independence at Home” project for chronically ill seniors; a special Medicare enrollment period for disabled veterans; Medicare reimbursement for bone-marrow density tests; and provisions devised to improve women’s health, prevent abuse, and ameliorate dementia, as well as abstinence education and disease prevention. And as was mentioned during oral argument, there is little doubt that the provision in the Act requiring employers to provide a “reasonable break time” and separate room for nursing mothers to go and express breast milk can function without the individual mandate. Importantly, this provision and many others are already in effect and functioning.
So why did Judge Vinson invalidate these provisions, given what he himself called the "the 'normal rule' that reviewing courts should ordinarily refrain from invalidating more than the unconstitutional part of a statute"?  He gave two reasons, both of which strike me as problematic.

1) Judge Vinson appeared to base the total nonseverability decision partly on what he took to be Congressional intent.  Given that the core purpose of the Act was to cover more people at lower cost, and given that the invalidation of the mandate--and with it the exchanges--would undermine that core purpose, Judge Vinson thought that Congress would not have passed the rest of the Act without the mandate.  He's right that prior cases had sometimes said that a provision of a law may be nonseverable if Congress would  have intended the Act to stand or fall as a whole, but to my knowledge the Court has never actually invalidated wholly unrelated provisions (like the break-time-for-nursing-mothers provision) on the basis of such imputed subjective intent.  Judge Vinson's approach ought to be especially unappealing to the Supreme Court's "textualists," who don't even like to speculate about what Congress subjectively intended by the language it enacted.  How much worse it should be to speculate about what Congress might have done if it had known that a provision it enacted would subsequently be found invalid.

2) Judge Vinson also invoked the difficulty of the task of figuring out, for each of the Act's provisions, whether Congress would have enacted it if it knew the mandate were going to be invalidated.  But at best this argument proves too little.  The Act's provisions fall into three categories: a) Those that are clearly intertwined with the mandate, such that the mandate's invalidation entails their invalidation as well; b) Those (like an IRS Form 1099 reporting requirement that he cites) that may or may not be deemed intertwined with the mandate but fall into a nether region; and c) those (like the break-time-for-nursing-mothers provision) that have nothing to do with the mandate or with any provision in category a) or b) that will be invalidated along with it.  Judge Vinson says that going through the Act line by line will result in effectively rewriting the law, in violation of what the Supreme Court has urged.

For now, I'll grant for the sake of argument that there are a fair number of provisions in categories a) and b) (although for reasons I'll elaborate in a later post, I don't think that there are).  Even so, that does not explain why Judge Vinson thinks it necessary to invalidate provisions that fall into category c).  As far as I can tell, the only argument he has for invalidating those provisions (putting aside his reliance on Congress's imputed subjective intent to pass nothing if there were no mandate) is that it's too much work to identify them.


egarber said...

Ironically, the claim that mandates are indispensible to the overall law might end up saving it under the commerce clause. If a purely valid and uncontroversial regulation of commerce doesn't work without item X, it seems logical that item X might itself be a valid rule under the clause.

Unlike with Lopez or Morrison, where the question at least in part involved whether there was any real nexus with commerce, here the very reason the law was thrown out is that connection.

Kevin C. Walsh said...

This post reads like a criticism of Judge Vinson's opinion, but seems really to be more of an indictment of current severability doctrine. The key to Judge Vinson's analysis is the framing of the question to be answered: Would Congress have enacted the remainder without the individual mandate? As you note, this is one typical formulation of the test for severability. And Judge Vinson's application of this formulation rests on the entirely plausible supposition that Congress would not have enacted the PPACA without the individual mandate. Although that conclusion rests on counterfactual speculation, such speculation is required by the typical doctrinal formulation that Judge Vinson used. While I agree that the holding of inseverability is problematic, I think that the problem lies in the formulation of the doctrine. I also agree that the speculation it seems to require ought to be particularly unappealing to textualists. I've previously laid out an alternative approach that has deep roots in U.S. law, and that may appeal not only to textualists but also to pragmatists who appropriately recoil at resting such a sweeping expansion of invalidation on speculation about what Congress might have done. Abstract here.

Michael C. Dorf said...

Kevin is right that the target of my critique of Judge Vinson's first point is at least partly the Supreme Court for having said that severability turns on Congress's hypothetical intent. But only partly. A lower court judge's job is supposed to be to figure out what the Supreme Court doctrine means, not just what it says. And given the Court's track record with respect to severability, one should probably understand the references to Congressional intent in the case law more metaphorically.

egarber said...

Much of the discussion surrounds the commerce clause, but the taxation argument seems airtight to me. I mean, what meaningful difference exists between paying higher taxes if one doesn't carry insurance, vs. paying more if one fails to make charitable donations?

Is the structure controlling? Meaning, there's some important distinction because here Congress failed to raise everybody's taxes first, before allowing a deduction for premiums? That hardly seems material -- after all, the power to tax is general, so Congress has latitude in determining the mechanics, it seems to me. Or in another context, consider subsidies. The definition of "subsidy" doesn't (or shouldn't) hinge on whether it's executed as a tax credit or direct payment.

I guess what I'm saying is that worst case, mandates would fail the commerce clause test, but they would still be upheld as a valid exercise of taxation authority. Did the judge rule on the taxation questio as well?

Michael C. Dorf said...

He ruled on the tax issue in an earlier opinion.

egarber said...

I mean taxation question...

egarber said...

So Mike, which is the better argument in support of mandates -- commerce power or taxation?

Michael C. Dorf said...


I think both grounds are strong but that the tax ground is stronger. There is at least room in the commerce clause doctrine to impose an "activity" requirement; in fact, the language (though in my view, not the logic) of past opinions supports one. But the argument against the tax power relies on the highly formalistic ground that the provision is not called a tax. Congressional power doesn't turn on labels.

Kevin C. Walsh said...

Perhaps the Supreme Court will use this individual mandate litigation as an opportunity to align what it says about severability better with what it does. Booker and the PCAOB case can each be understood as doing this in some way, though the retreat from the backwards-looking hypothetical mind-reading is not marked clearly enough to say for sure. In any event, if the Court does not hold the individual mandate unconstitutional (which it very well may not, of course), the clean-up of severability doctrine will have to wait for another day.

As to what counts as doctrinal fidelity, the idea that application of a doctrinal formulation should be limited by what the Supreme Court has previously done with it in practice (because use informs meaning) seems similar to the claim that Wickard, Raich, and other cases do not answer the question of the individual mandate's constitutionality because the mandated purchase aspect of the legislation is unprecedented. Of course one can agree with the general proposition but disagree with this particular application of it. The general topic seems like a good one for sophisticated analysis in a law review article.

Crispian said...

I was taken aback by the total invalidation of the law. And like you, I had the sense that the judge thought it would be a lot of work to discern which elements are wholly independent and easily severable. But ultimately, I think the judge was more right than lazy.

While I can also think of no instance in which the Court invalidated wholly unrelated provisions, I'm also having trouble thinking of an instance where the bulk of such a huge law was invalidated, leaving a collection of miscellaneous and largely tangential issues that a court took pains to preserve. This is partly a function of modern law-making in which myriad unrelated issues (except, perhaps, by theme) are thrown together in a single massive bill and the rarity with which Congress oversteps its bounds with the core purpose of such a large piece of legislation.

In this regard, the ruling does not merely rely on the imputed subjective intent of Congress that the entire bill rise and fall with the individual mandate and those provisions which rely upon it. I think what the judge is saying is that it is not possible for him to parse out what Congress would have done without the individual mandate in this bill. He certainly could presume Congress would have supported the break-time-for-nursing-mothers provision absent the individual mandate. But it is a clearly minor and tangential issue in light of the entire bill (as important as it may be in its own right).

I don't think a judge should try to decide how Congress would have felt about this or that minor provision as a freestanding law absent greater guidance. In the past, this guidance has come in the form of severability clauses and the structure of a law in which entire clauses serve a primary function of the bill. As a pragmatic matter, minor and miscellaneous issues are added to a bill more to satisfy particular members and get votes than to further the primary intent of the law.

For the judge to have preserved the minor and miscellaneous provisions would have required him not only to assume the subjective intent of Congress but he would have also had to guess how it would have voted on those provisions as free-standing laws (since the law itself does not make clear that these issues were severable, independent, or furthered a primary purpose of the law). Something like the break-time-for-nursing-mothers provision is certainly logically severable (and sounds like something most legislators would support) but there doesn't appear to be a reliable means for a judge to decide it was legally severable.

Publius the Clown said...

I agree with Eric's first comment. In his Raich concurrence, Justice Scalia said that Lopez stood in part for the proposition that "Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce."

Assuming that this is correct (and assuming that the national health insurance market qualifies as "interstate commerce"), then it's logically impossible to maintain both that the individual mandate is unconstitutional and that it isn't severable. If it's necessary to the regulatory scheme, then it's constitutional, and if it's not necessary to the regulatory scheme, then it's severable.

Publius the Clown said...

Hmm... looking further at severability doctrine, I guess the ultimate question is whether the legislature would have intended to preserve the rest of the bill without the unconstitutional provision--which is a somewhat subjective test.

So I guess my last post should have said "fairly difficult" instead of "logically impossible."

egarber said...

>>In his Raich concurrence, Justice Scalia said that Lopez stood in part for the proposition that "Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce."

So I suppose the big question is how Scalia would / will rule in this case, when it comes to commerce clause power. Mike -- any guesses? :)

michael a. livingston said...

But the whole thing is indeed a unified structure in which the support of the insurance companies was "bought" by forcing private citizens to buy things from private companies that they didn't want. On a formal level one could conceivably separate them. But when something is an integral part of a package--when it's quite clear the other parts would not have been enacted without it--why do so?

Crispian said...


I think the question of whether the individual mandate is "a necessary part of a more general regulation of interstate commerce" is totally separate from severability. There is not a common logical bond.

Certainly an application of the doctrine as spelled out by Scalia in Raich could lead to the conclusion that the mandate is constitutional. I find that analysis overly formulaic and superficial, but it is a valid legal argument to make. And given, Scalia's concurrence in that case, I'm certainly concerned which way he will go.

To illustrate that there is no logical inconsistency I'll use my favorite example, inspired by Wickard v. Filburn. Imagine if the government required people to grow wheat who are not otherwise doing so. It could easily be a necessary part of a legal scheme dealing with a national wheat shortage. Nonetheless, I would argue that the 13th Amendment, prohibiting involuntary servitude, would intervene. And if that wheat mandate were struck down, it could plausibly be severed from other parts of the hypothetical law with no logical conundrum.

With regard to the individual health care mandate, the 13th Amendment certainly does NOT apply. But that doesn't mean other principles and clauses do not. For the current case, the states have been citing the 9th and 10th Amendments and expressing concern about the limits of the Commerce Clause. Proponents of the health care law note the lack of "teeth" in those Amendments and dismiss concerns about expansion of the Commerce Clause as fanciful. To me, that train of logic diminishes the Amendments to technicalities - ie the Constitution certainly would empower the government to force us to grow wheat [ponder that for a moment] (as long as its necessary to an allegedly economic activity affecting interstate commerce) if not for the happy intervention of the prohibition against involuntary servitude.

My main point is there is no logical connection between necessity and constitutionality.

egarber said...

Here's a question for anybody:

Where exactly does this ruling apply? The entire country? The 26 states joining the suit? Only where standing was established? I know the judge didn't issue an injunction, but what if he had? I'm always confused about how binding district rulings are, when the federal government is a party. (Here it becomes obvious that I didn't go to law school :) ).

Publius the Clown said...

Crispian--you're right; if the individual mandate (or any other provision) is found unconstitutional because it violates an individual (or federalist) right in a constitutional amendment, a court could find that it's unconstitutional even if it finds that it's essential to the regulatory scheme, and could thus proceed to find that it's both unconstitutional and not severable.

So I guess I should clarify my point to say that, if the sole basis for a legal challenge is that a law is not within the scope of the commerce power, then it's difficult to say both that it's unconstitutional and that it's not severable.

Eric--that's a good question--I don't know the answer, and I did go to law school. They don't teach you anything that practical there! Curious to see if anyone does know the answer.