Severability's Contradictions

By Mike Dorf

My latest Verdict column discusses the severability issue in the Obamacare argument. (Note: I have taken to using the shorthand "Obamacare" now that the Obama Administration has embraced the term.)  I offer three reasons why attorney Paul Clement is wrong to say that the minimum coverage provision (aka "individual mandate") is the "heart" of the ACA.  Here I want to make a number of further related points.

The first is a criticism of the government's position on severability.  The government offered two positions.  The main position is that the SCOTUS should not address severability at all in the current litigation, simply granting relief to the plaintiffs if the minimum coverage provision is held invalid, and leaving the question of severability for future litigation in which someone with an otherwise justiciable case or controversy argues that some other provision of the law is invalid in virtue of being non-severable from the minimum coverage provision.

There is something to be said for the logic of the government's chief position: Whether the minimum coverage provision is severable from other provisions doesn't directly affect all of the parties before the Court; moreover, the Court has sometimes adopted this approach in the past.  Nonetheless, the Court has also sometimes addressed the severability issue along with the basic question of constitutionality, as a remedial question.  One might expect the conservatives--who are generally more attentive to case-or-controversy limits than the liberals--to be more receptive to the government's position here, but that would be politically naive.  The ideological framing of the case means that the conservatives are less receptive than the liberals to an argument that, if accepted, preserves more of the Act, even if temporarily.  Accordingly, a majority of the Justices seemed unreceptive to the government's position that the Court could just ignore severability.

That brings us to the government's second, fallback, position on severability.  The government says that if the Court strikes down the minimum coverage provision, then it should also strike down the provisions of the Act that require insurers to guarantee issuance of insurance regardless of pre-existing conditions, because the minimum coverage provision is "essential" to addressing the adverse selection problem that those provisions would otherwise create.  The government goes on to say, however, that the rest of the Act should be upheld.

As I explain in the Verdict column, even this limited form of nonseverability strikes me as wrong, for reasons mostly identified by Mr. Farr, the Court-appointed amicus who argued for complete severability.  But that raises the following question: Why did the government not propose complete severability?  I have a hypothesis, albeit an imperfect one.

My hypothesis is that the government feared that by taking an aggressive position on severability, it would undermine its position on the constitutional merits.  As I noted about a year and a half ago, the severability argument is a double-edged sword for both sides.  If you say that the minimum coverage provision is necessary to make the guaranteed-issue requirement work, that seemingly commits you to saying that the former is a valid regulation of Commerce but not severable in the event that the Court disagrees on that point.

But only seemingly.  As I note in the Verdict column, the threshold of necessity for sustaining the minimum coverage provision under the Commerce Clause ought to be lower than the threshold of necessity for a finding of non-severability.  And that is exactly what Mr. Farr said as amicus: "Necessary" for purposes of the Necessary and Proper Clause (or "essential" for purposes of the parallel judge-made doctrine) doesn't imply the sort of inextricable link that one would normally need for a finding of non-severability.  So the minimum coverage provision can be essential for Commerce Clause purposes but not essential for severability purposes.  Yet the government, for reasons that are not entirely clear to me, did not make the same argument.

I find the government's position on this point especially difficult to understand in light of the government's willingness to make a closely analogous move on the tax question.  The government was willing to argue that  the penalty for failure to comply with the minimum coverage provision is not a "tax" for purposes of the Anti-Injunction Act but is a "tax" for purposes of Article I, Sec. 8 of the Constitution.  As Neil Siegel and I explained in our Anti-Injunction Act article, that particular juxtaposition is difficult to reconcile with the Court's precedents in this area; yet the government advanced the argument anyway.  So why didn't the government advance the argument that "necessary" and "essential" mean different things in different contexts, given that, as I say in the Verdict column, that should be a winning argument?  I honestly don't know.

Interestingly, the plaintiffs had no similar compunctions.  The inconsistency should have been harder to overcome for the plaintiffs, but Paul Clement nonetheless told the Court that the minimum coverage provision was not necessary to the guaranteed-issue requirement for constitutional purposes but that it was nonetheless inextricably linked to the entire Act for severability purposes.  I suppose the best way for Clement to avoid self-contradiction (given that the threshold of necessity for constitutional purposes is lower  than for severability purposes) would be to say that even though the minimum coverage provision is not actually necessary for constitutional purposes, Congress thought it was, and so Congress chose non-severability.  I think that's a bad argument but perhaps it's not a self-contradiction.

Speaking of self-contradiction, it sounded during the oral argument as though Justice Scalia was prepared to abandon a central tenet of his philosophy of statutory interpretation, textualism.

Other than its rejection of reliance on legislative history to divine legislative intent, the core idea of textualism is its rejection of what is sometimes called "purposivism."  A purposivist judge looks to enforce not only the letter of a statute but also its purpose.  But, textualists (like Justice Scalia) say, that's a misguided enterprise: Statutes do not have enforceable purposes apart from their text, because the legislative process is one of compromise among legislators representing competing purposes of competing interest groups.  Thus, as Justice Scalia has frequently said, "Congress does not pursue its purposes at all costs."  Accordingly, when applying a statute, textualists do not try to identify and enforce a legislative purpose independent of the bundle of compromises embodied by the statutory language.

Yet severability is a question of statutory interpretation and during the severability portion of the Obamacare oral argument, Justice Scalia repeatedly averred that the Court's usual practice of severing invalid portions of statutes should not apply where the invalid portion is the "heart" of the statute.  Never mind that, as I explain in the Verdict column, this is wrong.  How, one wants to know, does an avowed textualist know that any particular provision of a statute is the statute's "heart?"  If legislation is a bundle of compromises--as textualists say it is for purposes of discerning what a statute means--then isn't it also a bundle of compromises for purposes of figuring out whether the invalid bits can be severed from the remaining bits?

I could understand if Justice Scalia took the position that the invalid portions of a statute are always presumed inseverable from the rest of the statute or always presumed severable from the rest of the statute, on the ground that courts can't figure out which parts were and were not central to the legislative "deal" (as textualists understand the legislative process).  But a special rule of non-severability for cases invalidating a statute's "heart" seems especially problematic for a textualist insofar as identifying a statute's heart seems to require judges to guess at Congress's real or imputed purposes (absent a textual statement like "this provision is the heart").