This article is the final entry in a symposium previewing California versus Texas.
Andy Schlafly is General Counsel to the Association of American Physicians & Surgeons. He filed an amicus letter in support of Texas on behalf of AAPS.
“To separate or not to separate” is not as profound a question as the immortal one Hamlet posed, but it can determine the fate of the Affordable Care Act. Congress did not include a severability clause in the ACA, and if the individual mandate is unconstitutional, the only way to salvage the law is to repeal its unconstitutional provision.
The President lacks the power to remove provisions from the statutes, and in a 6-3 ruling in Clinton v City of New York, the Supreme Court ruled against President Bill Clinton’s use of the 1996 veto by Congress. Prior to the court’s decision, Clinton had repeatedly vetoed the line item – as many governors customarily do – to remove wasteful funds from laws sent to his desk for signature.
In violation of the constitution’s presentation clause, the Supreme Court ruled to allow a president to remove provisions from legislation before they are signed. The presentation clause, which sets out the specific procedures by which draft laws become law, is not a clause most of us in law school have come across. However, in a statement from Judge John Paul Stevens, the court ruled that it must be strictly adhered to. Judge Anthony Kennedy agreed and gave the presentation: “[f]The impairment of political will does not justify unconstitutional legal remedies. “Nobody joined his rhetorical surge.
So if the President is forbidden from chopping and dicing laws, why should the judiciary, the so-called “least dangerous” department, as Hamilton called it in Federalist No. 78, be allowed to do so? It shouldn’t. At least we can elect or defeat a president every four years. Federal judges have no such accountability.
The legislation is a compromise and the process has been known to have been compared to making sausage. “In order to respect the sausages and laws, one must not observe them,” it may be said apocryphally, which is attributed to the political genius Otto von Bismarck. We don’t try to pick ingredients from cooked sausage before we eat them.
The sausage-like process of passing laws makes it impossible to know what can be removed without losing the majority it takes to pass it in Congress. In addition, a president has the right to know what he is advocating by putting his name at the end of a bill, and it is against the presentation clause to draft provisions 10 years later.
Both sides of this debate indicate that Congress knows how to include a severability clause or an inseparability clause when it is intended and that it does not include one in the ACA. However, federal courts have limited powers, and the Supreme Court has no powers that are not granted to it. Without Congress giving it the power to separate, the court lacks it.
California, however, cleverly cites the recent ruling by Justice Brett Kavanaugh in Barr v. American Association of Political Consultants. In this case, Kavanaugh wrote that there is a “strong presumption of severability” that “reflects[s] a critical preference for surgical separation rather than extensive destruction, even in the absence of a severability clause. “
Kavanaugh cited Marbury v Madison as the authority on the conclusion of severability when there is no severability clause, as Chief Justice John Marshall in that landmark decision did not invalidate the entire Judicial Act of 1789. If he had done so, Marshall himself would be out of a job, as that bill allowed the filling and funding of the Supreme Court and the decision, even without the Justice Act, would never have been possible. Of course, Marshall did not make his own position in Marbury unconstitutional.
In Barr, Kavanaugh lovingly quoted several Marshall decisions, but a cynic might wonder how long Marshall will be acceptable as an authority. Legal historian Paul Finkelman has observed that Marshall bought and sold many slaves throughout his life, freed virtually none of them after his death, and repeatedly ruled in favor of slave owners – including reversing a previous ruling against the international slave trade in The 1825 case , known as The Antilope (which got its name from the ship in question in the case). Marshall would pretend to distance himself from slavery while choosing and even benefiting personally from it. Marshall could end up like his then-respected successor as Chief Justice, Roger Taney, who drafted and long-remembered Dred Scott’s infamous decision against Sanford. The majority in court cited Taney only once in around 1,500 decisions in the past 20 years, and that was in one obscure patent case.
In any event, the Barr decision should not control the severability issue in the ACA case, since in Barr the court severed provision was not bound by the rest of the law, as is the individual mandate in the ACA. “Before any provision is repealed and the remainder of a law is left intact, the court must determine that the remainder of the law is” able to function independently “and is therefore” fully functional “as a law,” wrote Kavanaugh in Barr Chief Justice John Roberts in tow.
In contrast to Barr, the individual mandate is the foundation on which the ACA was built and adopted. It is true, as California argues, that Congress later gutted the individual mandate without lifting the ACA, but Congress often fails to clean up its own mess and that wrongdoing does not justify pretending the ACA can be constitutional, without the individual mandate supporting it above.
Additionally, California is not a politically disenfranchised litigator who should need the help of the Supreme Court to advance its interests in Congress. House Speaker Rep. Nancy Pelosi (D) is there to represent California’s interests, and House Minority Leader Rep. Kevin McCarthy (R) is also from California. Kamala Harris has represented California in the Senate since 2017. And the Golden State has ample resources to fill in the loopholes left by the ACA’s invalidation for its residents. California urged that this case be heard before Election Day and that a decision be made not to help those who benefit from the ACA, but for political reasons. That hardly justifies an extraordinary judicial separation to save a failed law.
Briefs filed by insurance companies, medical associations, and California cite the coronavirus pandemic as an argument in favor of maintaining ACA, but ACA has done nothing to address COVID-19.
If there are cases where political arguments are so convincing that they justify implicit severability, the ACA does not present such a case. The ACA added value to the shares of insurance companies that benefited from a law that made Americans buy their products. The ACA also throttled free market approaches that could actually help people out against catastrophic losses. Americans today do not have access to the purchase of low-cost, high-deductible insurance plans for healthcare expenses, partly because the ACA continues to regulate the market for the benefit of insurance companies. The Supreme Court should not create severability out of nothing to save a misguided law.
Andy Schlafly, Symposium: The court should not “separate” where the President cannot,
SCOTUSblog (November 9, 2020, 1:30 p.m.), https://www.scotusblog.com/2020/11/symposium-the-court-should-not-sever-where-the-president-cannot/