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The Sausage Factory

Judicial Review and Severability

This blog is named The Sausage Factory in reference to an aphorism formulated by German statesman Otto von Bismarck, who allegedly said that legislation is like sausage—you don’t want to see it being made. We leave today’s title to your imagination, because you don’t want to see it being unmade either.

At the end of March, the United States Supreme Court heard oral arguments to assess whether the Patient Protection and Affordable Care Act, the formal name for the law commonly referred to as ObamaCare, is constitutional. Opponents of the law argue that it is unconstitutional because of the “individual mandate”, the requirement that citizens purchase health insurance or be subject to a fine. Congress, they say, only has the authority to regulate interstate commerce and, therefore, does not have the authority to compel an individual to make any kind of purchase. In this post, we won’t weigh in on the merits of that argument, but will assume that it will be struck down, and consider whether the law should be invalidated totally or only in part.

The principle of judicial review, the ability of the Supreme Court to rule on the constitutionality, and therefore validity, of a law, is now taken for granted. In process of drafting and ratifying the constitution, a number of early statesmen argued that courts must have this power. When Virginia was debating ratification of the Constitution, John Marshall, who would become the fourth Chief Justice, argued, “If Congress were to make a law not warranted by any of the powers enumerated, it would be considered by the judges as an infringement of the Constitution which they are to guard…They would declare it void.” Likewise, Alexander Hamilton argued the same in Federalist 78: “No legislative act…contrary to the Constitution, can be valid” and that the “courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.” While the “Constitutional Lawyer-in-Chief” may need a brief refresher, most students studying American government know that the Supreme Court first employed this power in 1803, with the Marbury v. Madison decision.

Although it is accepted that the Supreme Court may determine that a law is unconstitutional, there is still a tension between this power and the principle that the majority ought to rule through the legislature. As Hamilton points out, the judiciary is not superior to the legislative branch. It exists so that the legislature does not decide for itself whether its own actions are constitutional. Thus, the Court attempts to provide Congress as much latitude as possible in creating law; where it can, it lets law stand. This is an instance of what is called “judicial self-restraint”. According to The Oxford Companion to the Supreme Court the justices should invalidate a law “only when the law clearly violates the Constitution”. Where the Constitution is unclear and Congress can make a plausible case for a law’s legitimacy, the Court ought to uphold it. In light of the principle of self-restraint, when a certain portion of the law is found unconstitutional, the rest is often—but not always—left standing.

The history of the Supreme Court offers numerous examples of both decisions were laws have been held to have separable portions and those that have been deemed inseparable. The Court, for instance, has held that the Bipartisan Campaign Reform Act has separable provisions. The Court found in FEC v. Wisconsin Right to Life that one provision of the law was unconstitutional as it applied to issue ads, but other campaign finance provisions were constitutional. Later, in Citizens United v. FEC, it found that the ban on corporate groups funding campaign advertisements was unconstitutional, but that the disclosure requirements were permissible. On the other hand, the Court may strike a law completely. In its decision on United States v. Morrison, the Court totally invalidated the Violence Against Women Act even though, according to legal scholar David H. Gans, writing in The George Washington Law Review, it suggested there were legitimate applications of the law. When the Supreme Court finds a portion of a law unconstitutional, the best course of action required to fix the situation is not always apparent.

Assuming that the individual mandate is found unconstitutional, applying the principle of judicial self-restraint will be especially vexing in this case. Often, when Congress passes a complex law, it will include what is called a severability clause. Such clauses declare that if a particular portion of a law is found to be unconstitutional, the rest of the statute is able to operate independently of it, and, therefore, it should be left standing. For instance, the second section of the Budget Control Act of 2011 (which established the failed Super Committee) reads “If any provision of this Act, or any application of such provision to any person or circumstance, is held to be unconstitutional, the remainder of this Act and the application of this Act to any other person or circumstance shall not be affected.” The problem with the ObamaCare legislation is that it contained no severability clause. (The text of the law is available on HealthCare.gov.)

The question of the severability of the individual mandate was crucial to the third day of oral arguments before the Court. If the mandate is unconstitutional, the law could be thrown out entirely or only parts could be invalidated. The Court heard three positions: first, that the whole law must go; second, the mandate must go, along with the provisions requiring health insurance companies cover people with pre-existing conditions and charge them rates comparable to those of healthy customers; and, third, that only the mandate needs to go.

It might seem that tossing only the individual mandate would exhibit the most restraint, but the justices were divided on this point. On the one hand, liberal Ruth Bader Ginsberg suggested when confronted with “a wrecking operation and a salvage job, a more conservative approach would be a salvage job”.  On the other, the justices that are usually called more conservative appeared to favor scrapping the law completely. One argument for this is that it is practically impossible for the Court to make a determination as to what should stay. Justice Antonin Scalia needled Assistant Solicitor General Edwin Kneedler by comparing reading the health care law to cruel and unusual punishment:

Mr. Kneedler, what happened to the Eighth Amendment? You really want us to go through these 2,700 pages?…Is this not totally unrealistic? That we are going to go through this enormous bill item by item and decide each one?

Justice Anthony Kennedy also appeared to favor striking the whole law, but was motivated more by philosophical, rather than pragmatic concerns, as Justice Scalia was.  Justice Kennedy, often referred to as the Court’s famed “swing vote”, seemed more concerned with preventing an outcome Congress did not intend:

When you say judicial restraint, you are echoing the earlier premise that it increases the judicial power if the judiciary strikes down other provisions of the Act. I suggest to you it might be quite the opposite. We would be exercising the judicial power if one Act was—one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended. By reason of this Court, we would have a new regime that Congress did not provide for, did not consider. That, it seems to me, can be argued at least to be a more extreme exercise of judicial power than to strike—than striking the whole.

Justice Kennedy’s suggestion considers the legislative process in toto, taking into account Congress’ intent, not merely scrutinizing the finished product, as Justice Ginsberg’s and Justice Scalia’s suggestions do.

It may seem to be the height of activism to strike down a law that has many parts not ostensibly related to the individual mandate, since the Supreme Court has a well-established doctrine of severability. If a law contains unconstitutional provisions, the doctrine of severability states that the court should only invalidate the unconstitutional parts, unless the legislature would not have intended the remaining constitutional sections to stand alone.  To determine this, the court tries to examine the legislative intent of Congress.

Although the severability doctrine is settled, there are problems with it, especially when you consider it from the point of view of an individual legislator. There is a significant chance that a piece of legislation without a certain provision would not have passed. Legislation is often very complicated, and monumental bills, like the Affordable Care Act, most certainly are. It is often hard to craft a coalition to pass a certain bill. When a bill like this is drafted, it has a main purpose and then a number of compromises along the way to reach a majority. As a bill becomes more controversial and when the margin of victory is small, each compromise becomes more necessary to ensure final passage. So if the Supreme Court were to start gutting a bill that did not have a severability clause, what is left is a bill that might well represent that only a minority of Members actually support. However, our laws should be based on the Constitution and on majority votes—not one or the other. Eliminating portions of a law that does not have a severability clause requires a court to speculate as to what a majority of the legislature would have wanted the resulting law to look like.

In the case of the Affordable Care Act, the justices should be very wary of severing any portion of the law, precisely because it was so monumental and controversial. Granted, it passed the Senate 60-39, but it was a strictly party-line vote, and the Democrats had a very comfortable majority there. However, it only passed the House with a seven-vote margin of victory (219-212). If only four Democrats in the majority had voted against it, the bill would have failed.  Indeed ObamaCare was the first instance in American history of such a transformative bill being passed without a majority of support in both parties – let alone without a single vote of any member of the minority party in either Chamber of Congress. (Compare it, for instance, with the Social Security Act and the Civil Rights Act where a majority of each party in both chambers supported final passage of these landmark bills. Similarly, Medicare passed the House with a majority of both parties, and passed the Senate, too, but was just a few votes shy of a majority of both parties.)

One of the stated intentions of the legislation was to secure insurance coverage for those with pre-existing health conditions—i.e., insurers could not deny coverage for or drop such patients. To achieve this goal, the government would force each American to purchase health insurance, so covering the very sick would not bankrupt insurance plans. It you take out the mandate, the law no longer works. So, if the individual mandate is found to be unconstitutional, the Administration is asking the Court to toss the requirement that the insurers cover those with pre-existing conditions and the prohibition against charging higher rates for such beneficiaries. Severing either the mandate alone or the mandate and the provisions concerning pre-existing conditions poses a dilemma for the Court. On the one hand, it is highly plausible that Members would never have voted for the complex provisions of the law if there were no means to pay for them, thus adding $1.7 trillion to the nation’s already crippling debt. Nor, as Justice Kennedy points out, would the bill have passed had the Members known that the insurance companies would go under. On the other hand, perhaps they had specifically rejected other alternative means of paying for the cost of ObamaCare such as higher taxes or deficit spending.  Indeed, under Congress’ budget reconciliation rules, it would not have been possible to pass the PPACA without a funding mechanism to offset the new spending in the bill. 

The issue of the individual mandate and its effect on insurers is being directly challenged in this case, but a number of other issues that could have been raised could also have affected the outcome of the vote. Abortion is a prominent example. Before signing on to the legislation, pro-life Democrats required the President to issue an executive order prohibiting use of taxpayer funds to cover abortions. These pro-life Democrats provided the final votes necessary for passage. An executive order, like the one that persuaded the pro-life Democrats to support the law, is legally distinct from the law itself, so quite separable from the law. This just reinforces the argument that the Supreme Court should be very wary of leaving only portions of a law intact. Changing this aspect of the legislative process would have completely changed the intent of Congress—there would be no law to challenge in the first place. (It is, of course, conjecture to say that the pro-life Democrats would have switched their votes without the executive order, but it would not have been surprising if they did. For instance, Representative Joseph Cao, the only Republican to vote for the House’s first healthcare bill, did not vote for the final version because it lacked language prohibiting funds from covering abortion.) When the Supreme Court starts slicing and dicing laws, we are potentially left with statutes that, at best, dubiously represent a majority of Congress.

Aside from the principle of respecting the integrity of a piece of legislation, there is a pragmatic consideration that suggests the entire law ought to be stricken. Practically speaking, it would require House Republicans, Senate Democrats, and a Democratic President to move heaven and earth to agree on a compromise to fix the healthcare law if only the mandate is struck down. The only reason the law passed in the first place was because the Democrats had significant advantages in both Chambers and a Democratic President. In the last wave election, Republicans took the House and increased their numbers in the Senate as a protest to the growth of the Federal Government, which ObamaCare symbolizes; in the current Presidential campaign, it is continuing to run on the same theme. The party is unlikely to sanction the symbol of all that it is running against. Likewise, the Democrats are probably unwilling to take steps to weaken the legislation they’ve been wanting for generations. And if we need any proof of the inability of Washington to compromise we need only to consider last year’s failed Super Committee. The prospect of a compromise over healthcare does not look so bright.

Of course, if the Congress had wanted to avoid these issues, it should have included a severability clause in the legislation. Thus, even if the Supreme Court needs to take a scalpel or a chainsaw to a law, then at least the Members knew what they signed up for, and have provided the justices direction in their work. Consider it a kind of legislative release form, if you will. But for now, if the Supreme Court rules that the individual mandate is unconstitutional, out of respect for the legislative process, it ought to rule that the whole law must go along with it.

Works Consulted

John Brigham. “Judicial Review” in The Oxford Companion to the Supreme Court of the United States. Oxford: OUP, 1992.

Stanley C. Brubaker. “Judicial Self-Restraint” in The Oxford Companion to the Supreme Court of the United States. Oxford: OUP, 1992.

David Gans. “Severability as Judicial Lawmaking” in The George Washington Law Review. Vol. 76: 639 2008.

Mark Strand is the President of the Congressional Institute and Timothy Lang is a research assistant. The Sausage Factory blog is a Congressional Institute project dedicated to explaining parliamentary procedure, Congressional politics, and other issues pertaining to the legislative branch.

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