The nomination of Judge Amy Coney Barrett to replace the late Supreme Court Justice Ruth Bader Ginsburg has raised questions about whether she’d vote to strike down all or part of Obamacare in an upcoming case. (Photo Credit: Senate Majority Leader Mitch McConnell, via Instagram)

One of the most significant issues raised during the confirmation hearings of Judge Amy Coney Barrett was the upcoming Supreme Court case regarding the constitutionality of the Affordable Care Act, better known as Obamacare. In this court case, two sets of states, one led by Texas and the other led by California, will ask the Court to determine whether the entire Obamacare law must fall because Congress, in 2017, repealed the tax penalty (called a fine initially) that enforced the individual mandate.  

As you may recall, the individual mandate is the provision that says all adults must have health insurance. If they did not purchase health insurance – either privately or through the Obamacare health exchanges, they would have to pay a penalty. The penalty would help fund the rest of the legislation. Justice Roberts wrote in his opinion upholding the law that the penalty was really a tax (more on this later). 

A subsequent Congress repealed that tax without voiding the rest of the act. Texas will argue that because there is no longer any enforcement of the individual mandate, the Supreme Court must strike down the entire Affordable Care Act. 

California will argue that, if the individual mandate is constitutional, the Court can sever the section on the individual mandate without striking down the rest of the bill. In fact, they can argue the Republican Congress showed in 2017 that the penalty is severable from the rest of the law, since they left the rest of Obamacare in place when they repealed the penalty.

To understand this issue, we need first to discuss what the judicial principle of severability is.

A law’s constitutionality is not always an all-or-nothing affair, with a law being upheld or struck down in its entirety. In many situations, only part of the law is invalidated. Severability is the legal concept that deals with whether some parts of a law may be enforced even if others may not. This is the crux of Texas v. California that the Supreme Court is scheduled to hear on November 10.

Laws usually contain multiple provisions, and complex laws can contain many provisions. Severability is the concept that different parts of a statute can remain in effect even if one or more parts of the same law are ruled unconstitutional.

Members of Congress and state legislators do not like seeing their laws struck down. Hence, they sometimes try to protect their act by including a severability clause (or even multiple clauses, if it’s an unusually large bill). These essentially say that if one provision is unconstitutional, another or other constitutional parts still have legal force. In other words, if only one portion is struck down, it does not take the rest of the law with it.  

Severability applies so long as the bill’s remaining provisions are not dependent on the offending provision which has been ruled unconstitutional. 

H.R. 1, the For the People Act of 2019, is an example of a bill from this Congress that contains a severability clause—actually many, since it’s so large. One of its severability clauses reads, “If any provision of this title or amendment made by this title, or the application of a provision or amendment to any person or circumstance, is held to be unconstitutional, the remainder of this title and amendments made by this title, and the application of the provisions and amendment to any person or circumstance, shall not be affected by the holding.”

Conversely, Congress (or a state legislature) may include a nonseverability clause with the opposite effect. Nonseverability clauses explicitly state that if one part of the law goes, other parts or the rest goes with it. These clauses are rare.

One example of a nonseverability clause from this Congress may be found in H.R. 51, the Washington, D.C. Admission Act, which would make Washington, D.C., the 51st state. The nonseverability clause in this bill says that if section Section 101, which contains the language granting the District of Columbia statehood is found unconstitutional, the rest of the law would fall with it. This is logical since if the purpose of the legislation is D.C. statehood, there would be no point in salvaging the rest of the bill if District statehood was ruled unconstitutional.

Depending on how a severability or nonseverability clause is written, it may apply to the entire act or only a portion of it (such as a specified section). 

While most significant laws will include a severability clause, not all legislation contains one. In fact, the Affordable Care Act did not. Failure to include a severability clause does not necessarily doom the law if the individual mandate section is found unconstitutional.

Even if a law does not contain a severability clause, the Court may wade through the law to determine whether other law parts are still valid. The Court may find that other sections can stand alone. Other times, some provisions might be constitutional in themselves, but they are so closely connected to other parts of the law that the Court invalidates the related items as well.

In other words, whether there is a severability clause or not, the Court can still consider whether parts of a law can remain, even if it finds one or more sections of the bill unconstitutional.

Let’s take a hypothetical example. Congress passes a law. The first section imposes stiff penalties on those who physically assault Federal Government officials and employees. The second section also clamps down on speech critical of government officials and employees. The law contains no severability clause. A court could look at this law and say that the penalties for assaulting government officials are constitutional, and the provision clamping down on free speech violates First Amendment rights. The provision of the law regarding penalties for assault would stand, and the provision about speech would be struck down.

Let’s also say that this law created an office of “Monitor of Speech Critical of the Government” whose sole responsibility is to enforce the anti-speech provision of the law. Congress can licitly create offices, but since this office is so intimately associated with the provision outlawing anti-government speech, a court would toss this part of the law as well.

If the unconstitutional part of a law is so closely intertwined with the rest of the law, the entire law might be rendered unconstitutional as well. In the case above, if there had been no section regulating penalties for assaulting government officials, and only a section regulating speech, the entire law would be tossed.

In assessing severability, a court may pay heed to “legislative intent”—what the Congress or state legislature meant to do when it passed the law. The Court can consider whether Congress would have passed the law without the offending provision. If the Court thinks that the Congress would have passed the rest of the law even without the offending provision, it is more likely to stand. If they believe the legislature would not have passed it without the provision in question, other parts, or the entire law, may come down as well. 

The complexity of laws and differing judicial philosophies mean that questions of severability can be highly controversial. And the legal community has not always been consistent on this. One legal scholar pointed out the various antagonisms that can be found in a commentary on severability:

Indeed, established doctrine on the severability of unconstitutional statutory provisions has drawn criticism on almost every conceivable basis. Commentators have condemned severability doctrine as too malleable and as too rigid; as encouraging judicial overreaching and as encouraging judicial abdication. They have criticized the doctrine’s reliance on legislative intent and its disregard of legislative intent; its excessive attention to political concerns and its inattention to political concerns; its lack of any coherent explanation.

Mark Movsesian, “Severability in Statutes and Contracts”

The complexity of severability raises the question: Why bother? Analyzing the severability of provisions of legislation is an exercise in judicial restraint. The people have entrusted Congress, not the Judicial Branch, with authority to make laws. By saying that one provision is severable, a court can leave in place the rest of what the people’s representatives have made. 

Figuring out what can be left is important because sometimes a law doesn’t make sense without a particular provision. For instance, going back to our earlier example, the first section of H.R. 51 provides statehood to Washington, D.C., and subsequent sections provide for things like the abolition of the office of Delegate, the new borders of the Federal enclave, and regulations for elections. If the first section is thrown out, the rest of the act is superfluous. In fact, if the first section were both unconstitutional and severable, leaving the rest of the law in place would mean that Congress would have changed the borders of the Federal city and abolished the office of Washington, D.C.’s Delegate to the House of Representatives. Washington D.C.’s current Delegate, Congresswoman Eleanor Holmes-Norton, most certainly wouldn’t want her position abolished if Washington’s statehood were found unconstitutional.  (Nonseverability clauses are rare, but its presence in H.R. 51 makes sense since some argue that the Framers specifically intended the Federal district not to be subject to any state government.)   

Which brings us back to the Affordable Care Act and the upcoming case before the Supreme Court. Obamacare is incredibly complicated, so figuring out what parts of the law are severable could be complicated.

The Affordable Care Act, often called Obamacare, required each American to have health insurance, whether their employer provided it or whether they purchased it for themselves. This requirement is known as the “individual mandate.” If a person failed to have health insurance, they were liable to a financial penalty, which the IRS collected along with the person’s annual tax returns.

Previously, the individual mandate was attacked as unconstitutional because Congress has the authority to regulate interstate commerce. But the failure to purchase a particular good is not commerce at all. However, in the case National Federation of Independent Business (NFIB) v. Sebelius, Chief Justice John Roberts wrote that the penalty was not a matter of commerce, but could be viewed as a tax, and the Constitution explicitly gave Congress the power to tax.

In 2017, Congress passed the Tax Cuts and Jobs Act, which eliminated the individual mandate’s penalty.

In 2018, several states, led by Texas, sued in a Federal district court, charging that the ACA is now unconstitutional. Since the penalty no longer generates any revenue, it can no longer be construed as a tax. The Court held that the individual mandate was unconstitutional and not severable from the rest of the law. The case was appealed to the 5th Circuit Court of Appeals and was again appealed to the Supreme Court.

On Tuesday, November 10, the Supreme Court will hear oral arguments for an hour for Texas v. California. The states led by Texas essentially want the Court to decide whether the individual mandate is severable from the rest of the ACA. Pro-Obamacare states, led by California, want the Court to determine whether the Texas coalition have standing to challenge the constitutionality in the first place; whether the individual mandate is now unconstitutional because the Tax Cuts and Jobs Act repealed the penalty; and if it is unconstitutional, whether the individual mandate is severable from the rest of the ACA.

The Court will likely first determine whether Texas and its fellow states have standing to sue. If they don’t the other questions will not matter. If they have standing to sue, the Court will have to analyze whether the individual mandate is constitutional. If it is constitutional, it will be unnecessary to weigh whether it is severable from the rest of the law. However, if it is unconstitutional, the Court may then proceed to determine whether it is severable or not, regardless of the fact that the Affordable Care Act does not contain a severability clause.

Even on a slow news day, Texas v. California would be an important case. But with the death of Justice Ruth Bader Ginsburg and the nomination of Judge Amy Coney Barrett to replace her, interest is heightened. Ginsburg, a Clinton appointee, was known as a member of the “liberal” wing of the Court, and Barrett, her likely replacement, espouses a more conservative judicial philosophy. NFIB v. Sebelius was a 5-4 decision. With Barrett’s addition to the Court, she could provide the vote needed to strike down the Affordable Care Act. 

In fact, Democrats have argued that Justice Barrett will doom Obamacare, but that is not at all clear in reality. First, as a general matter, once a justice is on the bench, they can surprise you. For instance, President George W. Bush appointed Chief Justice John Roberts, but Roberts provided the swing vote to uphold Obamacare in NFIB v. Sebelius. Likewise, Justice Barrett could surprise people on this issue (or any other issue) as well.

However, even legal experts who aren’t Democrats or progressive have expressed doubt on whether Barrett or other conservative jurists would vote to strike down Obamacare in this case. The doctrine of judicial restraint, a hallmark of conservative jurisprudence, could indicate just the opposite.

For instance, Andrew McCarthy wrote for the conservative National Review Online:

It is an easy severability case. The Court will observe that its precedents require a presumption in favor of severability (i.e., against invalidating all of Congress’s work). Moreover, there is no need to rely on a presumption here; Congress went to the trouble of amending the statute. That is, if lawmakers wanted to repeal all of Obamacare because the mandate had been zeroed out, they could have. Obviously, they opted not to.

Likewise, George Mason University law professor Ilya Somin wrote for the libertarian website Reason:

The pivotal claims in Texas v. California… would require conservative jurists to abandon a narrow view of Article III standing and abandon traditional approaches to severability. A commitment to conservative judicial principles does not require ruling for the plaintiffs. If anything, it would require voting the other way…

Even aside from the point of view of a conservative judicial philosophy, you might think that Republicans would prefer that the mandate be deemed non-severable. However, this is not necessarily the case, at least on the Capitol side of Pennsylvania Avenue. Congressional Republicans have committed to keeping the ban on discriminating against people with preexisting conditions and allowing adult children to stay on their parents’ health insurance up to the age of 26. In fact, Congress did not repeal the bill’s remaining sections when they repealed the individual mandate’s tax portion. If the mandate is unconstitutional and not severable, the Court would have to scrap the Affordable Care Act entirely. They may not want to see these provisions fall since it would mean they would have to re-legislate those provisions. On the other hand, if the mandate is severable, this and other provisions that are not integral to the individual mandate may remain in effect.

At the Senate Judiciary Committee’s hearings on Barrett’s nomination, she followed what has become known as the “Ginsburg rule” and, as a matter of professional ethics, declined to answer how she would rule on any particular issues that could come before her as a justice.

The use of crystal balls and other means of predicting how the Supreme Court will rule on any given issue has left more than a few legal scholars and media pundits shame-faced at how wrong they were. In reality, politicians in Washington often use scare tactics during debates. When Barrett’s nomination took place, the close proximity to the election probably made the temptation to score political points too tempting for today’s partisan politicians to resist. The only thing remaining to see is if these same politicians apologize to the Supreme Court nominee if the Supreme Court determines in Texas v. California that the Obamacare law’s remainder is severable from the individual mandate.