Posted Mon Nov 9th 2020 12:00 PM by Pratik Shah
This article is part of a symposium previewing California versus Texas.
Pratik Shah, a veteran of the Attorney General’s office, is co-head of the Supreme Court and Appeal Practice at Akin Gump Strauss Hauer & Feld and has tried 15 cases before the Supreme Court. He submitted an amicus letter on behalf of America’s Health Insurance Plans, the national trade association that represents health insurers, in support of California et al. And the US House of Representatives.
The Affordable Care Act has changed the American healthcare system in many ways. As a direct result, millions more Americans have affordable health insurance. When it comes to whether thousands of ACA statutes should fall due to an (alleged) unconstitutional provision, the stakes couldn’t be higher. At the same time, the answer couldn’t be easier. Scientists and court observers from all perspectives agree: whether the individual “mandate” is unconstitutional or not, the rest of the ACA should remain. Even some of the federal government’s most respected lawyers, including the attorney general, appear unwilling to associate themselves with the government’s ultimate failure to defend the ACA.
The severability clause is a remedy. If a legal provision is found to be unconstitutional, should it fall on its own, or does the entire law fall with it? As with other remedial measures, the touchstone is legislative intent: Would Congress have preferred “what is left of its statute” or “no statute at all”? Court case law recognizes a presumption in favor of separability – in other words, a court should generally only remove the offending provision and nothing more. Indeed, unless it is clear that the non-offensive provision is incapable of functioning in a manner consistent with what Congress is in regardless of the offensive provision, a court must “leave” them Has considered.
While Judges Clarence Thomas and Neil Gorsuch appear ready to “scrap” this “established divisibility doctrine”, no other judiciary has suggested willingness to bite. It was only in the last term of office that the question of separability was brought to court twice: in Seila Law v Consumer Financial Protection Bureau and Barr v American Association of Political Consultants. In both cases Thomas and Gorsuch questioned the “appropriateness of the modern theory of separability”. In both cases – with the fate of the ACA imminent – the other seven justices upheld the court’s “established” doctrine of separability and used the “strong presumption” of separability to remove the unconstitutional provision of two separate statutes while the rest remained intact. As Chief Justice John Roberts put it in his opinion on behalf of the Seila Law Tribunal, “unless there is strong evidence that Congress intended otherwise,” the doctrine functions as a “scalpel rather than a bulldozer”.
There is no clearer indication of Congressional intent regarding the severability of each mandate than the 2017 ACA amendment in which Congress (with laser-like precision) zeroed the tax payment previously used as a penalty for not buying health Insurance was imposed. In doing so, Congress has not touched any other ACA provision. This shows exactly what Congress would “prefer” – in fact, making the mandate unenforceable without changing another part of the ACA and separating the mandate from the rest of the law is functionally equivalent. The fact that the 2017 change came after several (rejected) attempts to repeal the ACA in whole or in part further confirms that Congress would rather keep what remains than have no ACA at all. The severability clause does not require any further request.
The challengers (a number of states led by Texas, plus two individuals) are trying to achieve by court order what they failed to achieve through the democratic process. The challengers disagree that the issue of separability is a congressional intent. However, rather than looking at the actions taken by Congress just three years ago, they refer to its original assessment, ten years ago, that the mandate (as issued) was “essential to creating effective health insurance markets.” However, this assessment speaks for the expectations of the Congress at the beginning of the ACA (for the “creation” of new markets) and not for the real knowledge of the Congress in 2017 (for the maintenance of these markets). The 2017 congress had the advantage of the Congressional Budget Office’s forecast that the individual market would remain stable even if only the individual mandate were directly terminated. And that prediction has been proven to be true. The single market remained robust over the 2019-20 period, even though Congress made the single mandate unenforceable by abolishing the tax payment.
Even if the intent of Congress weren’t so obvious, there would be no justification for knocking down the entire ACA over an already unenforceable provision. Doctrinally, the rest of the ACA can function as expected without the individual mandate. As noted, this is exactly what has happened since Congress disfigured the latter. That should come as no surprise: the vast majority of the ACA’s 900+ pages of regulations encompass a number of laws including the Social Security Act, Public Health Act, Medicare Act, Medicaid Act, and Retirement Income Security Act The Act, India’s Health Care Improvement Act, and Federal Food, Drugs and Cosmetics Act have nothing to do with the individual mandate.
There is practically no way that Congress would have intended the debacle that would result if the ACA were scrapped as a whole. The impact was evident when Congress amended the statute in 2017. And they are terrifyingly strong now. A result of inseparability would not only remove guaranteed coverage for people with pre-existing conditions, it would also remove the reassurance that young adults through the age of 26 can stick to their parents’ plans, abolish the ACA’s tax credits, and expand funding Billions in Medicaid programs cut 36 states and the District of Columbia are resurrecting Medicare Part D’s “Donut Hole” prescription drug, undoing major changes in Medicare payment, but amid a global pandemic that (so far) Over 230,000 Americans Have Killed Over 20 million Americans are unemployed. There is an acute and unprecedented need to replace lost employer-sponsored health insurance, and the ACA’s marketplaces and other reforms offer extensive coverage options to meet this need. A determination of inseparability would nullify these options when Americans are most dependent on them.
Regardless of what Congress intended in 2010, there can be no doubt that the 2017 Congress of Amendments could not have intended the devastating consequences of invalidating the ACA, in whole or in part Press a button of a judge would result and without replacement in sight. With this conclusion obvious, the question of separability should be simple. Let us hope that for the sake of our nation’s health, the court will agree.
Pratik Shah, Symposium: Severability Clause raises a high stakes question (with a simple answer).
SCOTUSblog (November 9, 2020, 12:00 p.m.), https://www.scotusblog.com/2020/11/symposium-severability-poses-a-high-stakes-question-with-what-should-be-an – simple answer /