“A scalpel rather than a bulldozer”: Severability is in the spotlight as the newest ACA challenge looms

Abbe R. Gluck is a professor of law and faculty director of the Solomon Center for Health Law and Policy at Yale Law School.

What is the Supreme Court to do with the rest of a statute when it finds one provision unconstitutional? That is the question a long-out-of-the-limelight doctrine — the “severability doctrine” — tries to answer. Should the court hold only the one provision invalid and leave the rest of the statute intact? Should it invalidate provisions especially linked to the offending one as well? Or should it strike down the entire statute?

Despite its relative obscurity, the doctrine is consequential. On the one hand, invalidating an entire statute for one faulty piece is the most invasive of remedies; on the other, the court is wary of altering Congress’ laws by excising parts of them. The severability doctrine takes a side: It presumes Congress wants its statutes saved. In the words of Chief Justice John Roberts this term in Seila Law v. Consumer Financial Protection Bureau, it’s “a scalpel rather than a bulldozer.”

The court used the doctrine to save two statutes this term after finding provisions of each unconstitutional: It saved the CFPB provisions of the Dodd Frank Act in Seila Law, and it saved the federal anti-robocall provisions of the Telephone Consumer Protection Act in Barr v. American Association of Political Consultants. Those two cases may be preludes to a bigger severability battle next term, as the court may have to apply the doctrine to decide the fate of the Affordable Care Act.

Roberts, citing cases reaching back to 1890, summarized what he called “our settled severability doctrine” in Seila Law:

[W]e try to limit the solution to the problem, severing any problematic portions while leaving the remainder intact. … We will presume that Congress did not intend the validity of the statute in question to depend on the validity of the constitutionally offensive provision … unless there is strong evidence that Congress intended otherwise.

Sometimes applying the doctrine is easier said than done, but it has generally been stable and uncontroversial for decades, and it has been deployed by judges of all interpretive stripes — textualists, purposivists and pragmatists alike. Things have heated up recently, however. Justices Clarence Thomas and Neil Gorsuch have expressed “growing discomfort” with the doctrine, raising concerns about the court’s power to “blue pencil” statutes and criticizing the “nebulous inquiry into hypothetical congressional intent” the doctrine sometimes requires.

That’s why it was significant that, in the span of a week with a decisive 7-2 alignment in both cases, the court emphatically reaffirmed what Justice Brett Kavanaugh in Political Consultants called these “ordinary severability principles.” For those reading the court’s tea leaves, the decisions seem to put the doctrine on solid footing in time for the ACA’s return to the court this fall — for its seventh time in eight years (!) — in California v. Texas.

In the ACA case, the Department of Justice and 18 states led by Texas argue that the ACA’s insurance-purchase mandate was rendered unconstitutional when the 2017 Tax Cuts and Jobs Act (passed by Congress after more than 70 failed attempts to “repeal and replace” the ACA) made just one change to the law: It zeroed out the penalty for failure to comply with the mandate.

The mandate was the focal point of the 2012 constitutional challenge to the ACA, National Federation of Independent Businesses v. Sebelius. In NFIB, five justices decided the mandate was not a valid exercise of Congress’ commerce power, but Roberts provided the fifth vote to save the mandate by construing it as a tax and so a valid exercise of the taxing power. In California, the challengers argue that the mandate is no longer a tax without the penalty and so lacks a constitutional basis. But, much more significantly, they argue that the mandate is so intertwined with key provisions of the law that, if the court invalidates the mandate, the entire 2,000-page ACA must fall with it. They also claim Congress said as much.

Enter the severability doctrine. Sometimes Congress includes explicit directions in a statute — so called “severability clauses” — that direct courts on what to do with the statute, or a part of it, if a provision is invalidated. But because of the court’s “strong presumption” in favor of severability, as reiterated in Political Consultants, Congress’ drafting manuals actually discourage express severability clauses as “unnecessary.” So, many statutes, including the ACA, don’t have them. The presence of a severability clause made Seila Law a relatively easy case, per the chief justice: “There is no need to wonder what Congress would have wanted if ‘any provision of this Act’ is ‘held to be unconstitutional’ because it has told us: ‘the remainder of this Act’ should ‘not be affected.’”

When Congress doesn’t speak expressly, the doctrine can get complicated, and the fact that the court has formulated the ensuing inquiry in several different ways doesn’t make it any easier. In Seila Law, the chief justice explained the “traditional rule” that, even without a severability clause, the “unconstitutional provision must be severed unless the statute created in its absence is legislation that Congress would not have enacted” (quoting leading severability precedent Alaska Airlines v. Brock). He also recited another common formulation: whether “the surviving provisions [are] capable of functioning independently” and “nothing in the statute’s text or historical context made it evident that Congress … would have preferred” no statute at all over a statute without the offending provision.

Figuring out what Congress “would have preferred” can be difficult. Congress does not always foresee legal disputes about the laws it enacts. And Congress assumes its laws are constitutional. As to the “functionality” inquiry — can the statute “function” without the invalid provision? – that is also a means to get at congressional intent, but it also can be hard for courts, especially for complex statutes.

And asking whether “Congress would not have enacted” the legislation at all without the provision, as Kavanaugh put it in Political Consultants, “often leads to an analytical dead end.” Congress, of course, might have just chosen a different way to accomplish the policy had it known a provision would be invalidated. Enact or trash the statute seems like a false choice.

In Political Consultants, even though the TCPA has a severability clause, Kavanaugh went out of his way to hammer home the strength of the presumption of severability when there is no clause. Recognizing the “what-would-Congress-have-wanted” inquiry can be difficult, Kavanagh instead emphatically endorsed the doctrine’s workability as a presumption — indeed  a “strong presumption” — of statutory interpretation, just like the scores of other presumptions that textualist judges (and most other judges) use to tip the scales when Congress isn’t clear. A strong presumption alleviates the need to psychoanalyze Congress: If Congress isn’t clear that the statute should fall, it remains. Kavanaugh wrote: “The Court’s presumption of severability supplies a workable solution — one that allows courts to avoid judicial policymaking or de facto judicial legislation.” He also used the same analogy as Roberts: “The Court’s precedents reflect a decisive preference for surgical severance rather than wholesale destruction, even in the absence of a severability clause.”

This would seem to bode well for the ACA. The House of Representatives and the states opposing the new challenge argue that Congress clearly expressed its intent that the ACA survive, because when the 2017 Congress made the mandate unenforceable, it decided to leave the rest of the ACA standing. In so doing, the law’s supporters argue, Congress determined that the ACA could function without an enforced mandate, and its legislative act of eliminating only one small piece of the law evinced its clear intent to leave the rest of the ACA in place.

The DOJ and Texas, however, argue that Congress has spoken against severability. They argue that the mandate is inextricably intertwined with some of the ACA’s significant reforms to private insurance, including the prohibition against discrimination based on pre-existing health conditions. They further argue that if the big insurance reforms go, the rest of the statute should go with them because Congress never would have enacted the less significant provisions absent the big ones. (But what counts as less significant? The Medicaid expansion? All the new Medicare benefits? New pathways for biologic drugs?)

For evidence, the DOJ and Texas rely on a paragraph of the ACA’s findings concerning the mandate. That paragraph, entitled “Effects on the National Economy and Interstate Commerce,” describes the mandate as “essential” to supporting effective health insurance markets in which some of the law’s new insurance reforms operate. The challengers argue that because the 2017 Congress did not repeal those 2010 findings, Congress believed certain provisions depend on the mandate to survive. The Obama-era DOJ used the same findings in NFIB to argue that the 2010 Congress likely viewed two key insurance provisions (but not more) as linked to the mandate.

The House and the ACA-supporting states respond that the commerce clause findings are now irrelevant, since the court in NFIB rejected the entire commerce clause justification for the mandate. They also argue that it doesn’t matter what the 2010 Congress might have thought: The 2017 Congress was entitled to change its mind about the essentiality of the mandate based on years of evidence about the ACA in practice. And they argue the 2010 findings about interstate commerce cannot possibly be construed as something different entirely — an express “inseverability clause” that would trump the presumption in favor of severability or constitute a clear expression that the 2017 Congress intended for the entire ACA to go down. (Not incidentally, the findings also link the mandate to statutes outside the ACA, including the massive Employee Retirement Income Security Act, which governs the nation’s pension and benefits system. Yet no one is arguing that the court should strike down ERISA, too.)

As for Thomas and Gorsuch, they want a new doctrine. They argue that early American cases adopted the approach of “simply declin[ing] to enforce [the offending provision] in the case before them” rather than editing statutes or assuming courts have power over anyone not party to the case. (Note that this approach might not lead to a substantially different outcome from severability in the ACA case.) Thomas, joined by Gorsuch, voiced these concerns both in the 2018 case Murphy v. National Collegiate Athletic Association and in Seila Law. Gorsuch also wrote a partial dissent as to severability, joined by Thomas, in Political Consultants.

Thomas and Gorsuch also raise questions about standing. A plaintiff who has no standing to challenge an entire law still could take an entire statute down by successfully attacking one provision and then arguing that the provision is inseverable from the law as a whole. The House voices the same concern in the ACA case.

That case won’t be argued until November – potentially right around Election Day. If the justices agree with the challengers that zeroing out the penalty renders the mandate unconstitutional, the severability doctrine will decide the fate of the 2,000-page law, the health care of millions of Americans and broader questions about separation of power. As Kavanaugh put it, severability is about “the Judiciary’s respect for Congress’s legislative role.”

The stakes are high. In Seila Law, Roberts refused to “junk our settled severability doctrine.” Again, from Kavanaugh: “Constitutional 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.”