*Josh Gehret
On October 22, 2020, now Vice-President Kamala Harris tweeted she—alongside her Democratic colleagues—boycotted the Judiciary Committee’s vote to determine whether Amy Coney Barrett’s nomination should be heard by the Senate because the hearings “show[ed] how Republicans will stop at nothing to strip health care from millions of Americans with pre-existing conditions.”[1] The issue of healthcare was a central part of the Democratic party’s criticisms of Justice Barrett during her confirmation hearings, due in part to President Trump’s stated goal of overturning Obamacare.[2] The confirmation hearings for the next Supreme Court Justice were yet another arena for partisan jabs, intensified due to the impending election.[3] But beneath all the ruckus, how serious or successful could a legal challenge be against Obamacare?[4]
I. Current Challenge to the Affordable Care Act: California v. Texas
Obamacare, or the Affordable Care Act (ACA or the Act), is before the Supreme Court for the seventh time, in California v. Texas.[5] This latest challenge to the Act came when, after more than seventy attempts to repeal it, Congress changed a key provision by eliminating the penalty for complying with the ACA, in the Tax Cuts and Jobs Act of 2017.[6] This now-eliminated “penalty provision” of the ACA was the subject of a 2012 constitutional challenge, which the Supreme Court, in an opinion written by Chief Justice Roberts, upheld by construing the provision as a tax instead of an illegal penalty and thus a valid exercise of congressional taxing power.[7] Now that the penalty has been changed to zero, the challengers to the Act argued the penalty can no longer be viewed as a tax and lacks a constitutional basis.[8] What is more significant, and the central issue before the Court, is whether the now-unconstitutional mandate can be severed from the rest of the Act, leaving the rest intact, or whether the entire Act must fall alongside the unconstitutional provision.[9]
II. The Severability Doctrine–From Marbury to 2020
The doctrine of severability has been firmly established since Marbury v. Madison, when the Supreme Court invalidated only part of §13 of the Judiciary Act of 1789.[10] In 1880, the doctrine was later described as “an elementary principle that . . . [a] statute may be in part constitutional and in part unconstitutional, and that if the parts are wholly independent of each other, that which is constitutional may stand while that which is unconstitutional will be rejected.”[11] However, the entirety of a statute can be invalidated if the unconstitutional part of the statute is “mutually connected . . . and dependent.”[12] The severability doctrine is alive and well, employed twice last term by the Supreme Court to salvage two statutes after the Court held parts of them unconstitutional.[13]
The severability doctrine presumes Congress wants its statutes to be saved.[14] In the most recent application of the doctrine, Barr v. American Association of Political Consultants, the Supreme Court used the severability doctrine to preserve the anti-robocall provisions of the Telephone Consumer Protection Act of 1991 after finding an exception added in 2015 (which allowed robocalls for collecting federal debt) was unconstitutional.[15] The key question in applying the doctrine was whether the unconstitutional provision could be severed without disturbing the rest of the statute.[16] Since the remainder of the statute was capable of functioning as an independent, operative law after the unconstitutional provision was severed, the doctrine applied and the rest of the statute remained in effect.[17]
The Court noted that situations where the remainder of the law would not be independently operative are “fairly unusual” but should be addressed on a case-by-case basis.[18] In Barr, the Court noted that the robocall law had functioned for nearly twenty years before the unconstitutional provision was added in 2015, so severing the provision did not present a problem.[19] Citing several cases from the early 1900s and Marbury in support, the Court considered the original law a “valid expression of the legislative intent” and assumed that the original statute was functionally operative prior to adding the unconstitutional and subsequently severed amendment.[20]
Justice Kavanaugh, writing for the seven justices concurring with respect to the severability issue in Barr, made a powerful case for the doctrine by grounding it in Marbury v. Madison, noting that without severability, the entire Judiciary Act of 1789 would be invalid under Marbury’s holding.[21] He explained that “[c]onstitutional litigation is not a game of gotcha against Congress, where litigants can ride a discrete constitutional flaw in a statute to take down the whole, otherwise constitutional statute.”[22] Further, in response to the dissent of Justices Gorsuch and Thomas, Kavanaugh wrote that the doctrine of severability can be “predictably applied” and “is constitutional, stable . . . and commonsensical.”[23]
One wrinkle in the doctrine is determining congressional intent—whether Congress would prefer the law to stand apart from the unconstitutional provision, or whether the entire statute should die with the unconstitutional provision.[24] Such a search for intent often leads to an “analytical dead-end” and as such, the doctrine presumes that Congress intends as much of the statute to stand as is constitutional.[25] Sometimes a statute will contain a severability clause, which clearly signals to the Court what Congress wishes, but even in the absence of a severability clause, the doctrine still lends a “strong presumption” of severability.[26] This presumption allows the Court to respect the legislative role of Congress by avoiding unnecessary disturbance of the law.[27]
Ten days before Barr was decided, the Court decided Seila Law LLC v. Consumer Financial Protection Bureau.[28] Chief Justice Roberts wrote for the same seven justices with respect to severability.[29] The first issue was whether the structure of the Consumer Financial Protection Bureau (CFPB) unconstitutionally insulated its director from removal by the president—the Court concluded that it did.[30] The Court then proceeded to determine whether the entire Dodd-Frank Act that established the CFPB was unconstitutional, or whether the unacceptable provision was severable.[31]
Severability is a question of law alone.[32] Roberts summarized “our settled severability doctrine” as one that “limit[ed] the solution to the problem, severing any problematic portions while leaving the remainder intact.”[33] To determine whether severing the offending provision would leave the rest of the law operative, Roberts wondered, rather rhetorically, whether “Congress would have preferred a dependent CFPB to no agency at all.”[34] Roberts weighed the wide-ranging effects of judicially abolishing the CFPB against merely severing the offensive provision and determined that Congress would prefer to keep the CFPB rather than eliminating the agency and causing “major regulatory disruption” and causing “appreciable damage.”[35] Roberts concluded his analysis by noting “[w]e think it clear that Congress would prefer that we use a scalpel rather than a bulldozer in curing the constitutional defect[.]”[36]
III. Obamacare Entitled to Presumption of Severability
Attempting to forecast the Court’s ruling on any issue is an uncertain business—especially with the composition of the Court changing with the passing of Justice Ginsburg—but the severability precedent affirmed by the Court twice last term is a favorable wind in the sails of Obamacare.[37] Many scholars also see the challenge against Obamacare on severability grounds as legally weak, since the severability doctrine is much less disputed and ideologically divisive as the previous challenges to Obamacare.[38] Seven Justices voted to uphold the established severability doctrine in both Barr and Seila: Roberts, Kavanaugh, Alito, Kagan, Sotomayor, Breyer, and the late Justice Ginsburg.[39] There’s little reason to think the remaining justices would radically alter their positions on the doctrine after having twice upheld it.[40]
One question, of course, is how Justice Barrett may vote in such a decision, although her vote is unlikely to be dispositive, as is evident from how the other Justices voted in Barr and Seila.[41] When questioned about severability during her confirmation hearings, she stated “[t]he presumption is always in favor of severability.”[42] This is not the end of the inquiry, but her statement betrays no negative feelings about the doctrine.[43]
The severability doctrine is strong, grounded in both the Constitution and precedent nearly as ancient as the federal judiciary.[44] There is no reason to think Obamacare would not be entitled to the same protections.[45] The main question for the Court in California v. Texas is whether the penalty provision can be severed without rendering the rest of the Act inoperative.[46] While there is no severability clause in the text of the ACA, the holding in Barr indicates that if the Court finds the “penalty provision” of the ACA unconstitutional, the Act should enjoy a strong presumption that any offending provisions would be severable.[47] To overcome such a presumption, the Obamacare challengers needed to show the provision was so connected to the rest of the Act that the provision cannot be severed.[48] Admittedly, the connection between the penalty provision and the rest of the ACA is fact intensive and requires a determination on the case’s merits, but Barr suggests that the rest of the statute (in this case, the rest of the 2,000-page ACA) will rarely be inoperable once one the severed part is removed.[49] Like the statutes in Barr and Seila, there are many provisions of the Act that have been in force and exist separately from the penalty provision, so a later amendment to the Act—here, the 2017 action nullifying the penalty provision—should not indicate to the Court that the rest of the Act is now inoperative, but that the law has been functioning independently and can continue to do so in the absence of the offending provision.[50]
There seems to be little reason why the Court should strike down the entirety of the ACA when it has indicated a clear desire to interfere as little as possible and leave legislating to Congress, announcing loudly and clearly that severability is the preferable solution to dealing with unconstitutional statutory provisions.[51] While any uncertainty about the healthcare of the nation during the coronavirus pandemic is a serious one and the stakes are very high, the Court’s decision likely does not rest on the shoulders of Justice Barrett,[52] and suggests the claims made by Democrats during the confirmation hearings may have been motivated more by politics than a novel and untested legal challenge to Obamacare.[53]
*Josh Gehret is a staff editor for Law Review and a proud evening student in his second year at UB Law, where he was inducted as a distinguished scholar to the Royal Graham Shannonhouse III Honor Society. He currently works full time as a marketing compliance manager with the general counsel’s office at 14 West Administrative Services. Josh is a UMBC alum and after graduating was awarded a Fulbright grant to Indonesia, where he taught English.
[1] Kamala Harris (@KamalaHarris), Twitter (Oct. 22, 2020, 9:47 AM), https://twitter.com/KamalaHarris
/status/1319274079396921347.
[2] See Michael Macagnone & Katherine Tully-McManus, Democrats Again Hammer on Health Care in Third Day of Amy Coney Barrett’s Hearings, Roll Call (Oct. 14, 2020, 7:05 PM), https://www.rollcall.com/2020
/10/14/democrats-again-hammer-on-health-care-in-third-day-of-amy-coney-barretts-hearings/.
[3] See Todd Ruger, Lots of Partisan Sniping, But Not a Lot of Mystery, at Supreme Court Confirmation Hearing, Roll Call (Oct. 12, 2020, 4:43 PM), https://www.rollcall.com/2020/10/12/lots-of-partisan-sniping-but-not-a-lot-of-mystery-at-supreme-court-confirmation-hearing/.
[4] See infra Part II for discussion of the seriousness of the challenge; see infra Part III for discussion of how likely the challenge is to succeed.
[5] Texas v. United States, 945 F.3d 355 (5th Cir. 2019), cert. granted sub nom. California v. Texas, 140 S. Ct. 1262 (2020); Abbe R. Gluck, “A Scalpel Rather Than a Bulldozer”: Severability Is In the Spotlight as the Newest ACA Challenge Looms, SCOTUSblog(July 28, 2020, 10:33 AM), https://www.scotusblog.com/
2020/07/a-scalpel-rather-than-a-bulldozer-severability-in-the-spotlight-as-the-newest-aca-challenge-looms/.
[6] Gluck, supra note 5.
[7] Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 570 (2012).
[8] Gluck, supra note 5.
[9] U.S. Sup. Ct., 19-1019 Texas v. California (2020), https://www.supremecourt.gov/docket/docketfiles
/html/qp/19-01019qp.pdf.
[10] Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803); see also infra note 21 and accompanying text.
[11] Allen v. Louisiana, 103 U.S. 80, 83–84 (1880).
[12] Id. at 84 (quoting Warren v. City of Charlestown, 68 Mass. (2 Gray) 84, 84 (1854)). The severability doctrine has been affirmed by the Supreme Court in a line of cases through the twentieth century. See Loeb v. Trustees of Columbia Twp., 179 U.S. 472, 490 (1900); see also Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 685 (1987) (“[T]he unconstitutional provision must be severed unless the statute created in its absence is legislation that Congress would not have enacted.”).
[13] See Barr v. Am. Ass’n of Pol. Consultants, 140 S. Ct. 2335 (2020) (saving the federal anti-robocall provisions of the Telephone Consumer Protection Act); Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183 (2020) (saving the consumer financial protections of the Dodd-Frank Act).
[14] See infra notes 15–36 and accompanying text; see also Gluck, supra note 5.
[15] Barr, 140 S. Ct. at 2356.
[16] Id. at 2352 (quoting Seila, 140 S. Ct. at 2209).
[17] Id. at 2352 (quoting Seila, 140 S. Ct. at 2209).
[18] Id. at 2352 n.9.
[19] Id. at 2353.
[20] Id. (quoting Frost v. Corporation Comm’n of Okla., 278 U.S. 515, 527 (1929); Truax v. Corrigan, 257 U.S. 312, 342 (1921); Eberle v. Michigan, 232 U.S. 700, 704–05 (1914); Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)).
[21] Id. at 2351. The Court cited Marbury five times to support the longstanding constitutionality of the severability doctrine. Id. at 2350–56; see also Marbury, 5 U.S. 137 at 179–80.
[22] Id.
[23] Id. at 2356.
[24] Id. at 2349–50.
[25] Id. at 2350.
[26] Id.
[27] Id. at 2350–51.
[28] See generally Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183 (2020).
[29] Id. at 2187.
[30] Id. at 2191, 2207–08, 2211.
[31] Id. at 2207–08.
[32] Id. at 2208.
[33] Id. at 2210, 2209 (quoting Free Enterprise Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 508 (2010)).
[34] Id. at2210.
[35] Id. at 2210.
[36] Id. at 2210–11.
[37] See supra Part II.
[38] Sarah Kliff & Margot Sanger-Katz, Without Ginsburg, Supreme Court Could Rule Three Ways on Obamacare, N.Y. Times (Nov. 10, 2020), https://www.nytimes.com/2020/09/21/upshot/ginsburg-supreme-court-future-obamacare.html?action=click&module=RelatedLinks&pgtype=Article.
[39] Seila, 140 S. Ct. at 2186; Barr v. Am. Ass’n of Pol. Consultants, 140 S. Ct. 2335, 2340 (2020).
[40] See supra Part II.
[41] Seila, 140 S. Ct. at 2186; Barr, 140 S. Ct. at 2340.
[42] Adam Liptak, ‘Severability’ Could Save Health Law, Graham Says and Barrett Seems to Agree, N.Y. Times (Nov. 3, 2020), https://www.nytimes.com/2020/10/14/us/amy-barrett-aca-obamacare.html.
[43] See infra notes 44–49 and accompanying text; Liptak, supra note 42.
[44] See supra Part II; see also notes 10–13, 20 and accompanying text.
[45] See supra Part II.
[46] See Barr, 140 S. Ct. at 2352; Seila, S. Ct. at 2209; see also infra notes 48–51 and accompanying text.
[47] Gluck, supra note 5; Barr, 140 S. Ct. at 2350.
[48] See Seila, 140 S. Ct. at 2208.
[49] See Barr, 140 S. Ct. at 2352, 2352 n.9; Gluck, supra note 5.
[50] Seila, 140 S. Ct. at 2210; Barr, S. Ct. at 2353; see also Kliff & Sanger-Katz, supra note 38.
[51] Seila, 140 S. Ct. at 2209.
[52] See Liptak, supra note 42; see also supra note 39 and accompanying text.
[53] See Harris, supra note 1; see also Macagnone & Tully-McManus, supra note 2; see also supra Part II.
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