Sense and severability

The issue in the Obamacare argument before the Supreme Court this morning goes under the heading of severability. The issue only becomes relevant if the Court holds Obamacare’s individual mandate unconstitutional, the issue before it in the argument held yesterday. Thus the whole argument this morning becomes moot if the Court upholds the mandate.

Having read the transcript and listened to the audio of yesterday’s argument, I think it is difficult to escape the conclusion that the mandate is in serious jeopardy. I think one can infer further from the tenor of the argument this morning that the mandate is in deep trouble.

So what is the issue of severability? The issue is whether a given provision of a law can be struck down by itself if found invalid, or if other parts of the law, if not the whole law, must fall with it.

Usually this question is answered by a provision of the law in issue. When enacting statutes, Congress frequently addresses the question with a severability clause providing that if any provision of the law is struck down, the remainder of the law is to survive. It can also address the issue with a nonseverabilty provision, which in my experience is less frequently the the case. The law itself usually answers the question of severability directly.

I think it’s fair to say that the intent of Congress controls, even if that oversimplifies things a bit. Judge Vinson addressed the issue of severability and discussed the relevant case law at pages 63-74 of his decision finding the law unconstitutional. (He held the mandate not to be severable from the rest of the law.)

What did Congress intend with Obamacare? The problem in the case before the Court is that Congress — the clowns who enacted and signed Obamacare — didn’t expressly say what it intended. The Obamacare law is silent on severability, although one can draw inferences or try to figure out what makes sense under the circumstances. Judge Vinson found the absence of a severability clause significant by inference, because one had been included in an earlier version of the act that became Obamacare.

Representing the 26 states challenging Obamacare, Paul Clement argued that the whole law should fall. The deputy solicitor general representing the United States before the Court this morning asked the Court to remove only the guaranteed issue and community rating provisions of the law if it holds the mandate unconstitutional. Even the Obama administration does not contend that the mandate can fall by itself.

As Adam Liptak explains, the Court appointed attorney H. Bartow Farr III to argue that the rest of the law should survive the fall of the mandate. In that case, the Court would leave Congress to clean up its own mess. The only comment I would make is that, the composition of Congress having changed since the passage of the law, precisely because of the passage of the law, that doesn’t seem quite right.

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