By Steve Vladeck and Amanda Frost, professors at American University Washington College of Law.
One of the most remarkable aspects of Judge Vinson's January 31 decision invalidating the Patient Protection and Affordable Care Act ("PPACA" or "Act") was his conclusion that the individual mandate (which he found to exceed Congress's power) could not be severed from the rest of the Act. As such, Judge Vinson concluded that his only choice was to strike down the Act in its entirety, even though most of the 2,700-page bill has very little to do with the requirement that all Americans carry health insurance.
And yet, as Judge Vinson acknowledged, and as is black-letter law, Congress's intent is the touchstone of severability analysis, and there is a presumption in favor of severability. As we explain below, Judge Vinson was mistaken both legally and logically in his conclusion that Congress would have wanted the entire statute to fall once the individual mandate was struck down. Congress enacted a statute with hundreds of provisions, many entirely unrelated to the individual mandate, and thus it is at best unclear whether or not Congress would have intended the rest of the Act to fall if the individual mandate were struck down. As such, the presumption in favor of severability should have led him to the opposite conclusion. Instead, Judge Vinson's unnecessary analysis smacks of the very judicial activism that his opinion so often decried.
Under current severability doctrine, even if one provision of a state or federal statute is found to be unconstitutional, the rest of the statute will remain in effect so long as it is found to be severable from the unconstitutional provision. And the only guidepost for severability analysis is legislative intent; a court must determine whether Congress (or, in the case of state law, the state legislature) would prefer that the entire statute be voided once the constitutionally flawed provision is excised. Courts begin such an analysis with a strong presumption in favor of severability, and attempt to salvage as much of the statutory text as possible in order to preserve the product of the democratic process. As the Supreme Court explained in Ayotte v. Planned Parenthood in 2006, "[w]e try not to nullify more of a legislature's work than is necessary, for we know that a ruling of unconstitutionality frustrates the intent of the elective representatives of the people."
Congress can, of course, make this task easier for courts by including a "severability clause" in its legislation explicitly stating its intentions. In the typical case, then, the existence of a severability clause is dispositive of the severability question. Perhaps counter-intuitively, though, the absence of a severability clause does not alter the presumption in favor of finding that an unconstitutional provision can be severed from an otherwise constitutional statute. Indeed, the Court has stated that "the ultimate determination of severability will rarely turn on the presence or absence of such a clause." Thus, the fact that the PPACA does not include a severability clause is virtually irrelevant to the question of whether the remainder of the Act should survive Judge Vinson's invalidation of the individual mandate.
Judge Vinson's decision doesn't ignore these precedents; it just misapplies them. Indeed, his opinion specifically acknowledged "that some (perhaps even most) of the remaining provisions [of the statute] can stand alone and function independently of the individual mandate." Nonetheless, he concluded that the entire statute must fall because Congress would have "preferred to have no statute at all" compared to one without the individual mandate. In his words, "the record seems to strongly indicate that Congress would not have passed the Act in its present form if it had not included the individual mandate" because "the individual mandate was indisputably essential to what Congress was ultimately seeking to accomplish."
However, it hardly follows that the importance of a provision is proof of its lack of severability. Even if the individual mandate was as essential to the entire bill as Judge Vinson assumed, it does not follow that Congress would have wanted to void the hundreds of other unrelated, or tangentially related, provisions in the statute. For example, the "Independence at Home" project for chronically ill senior citizens; a special Medicare enrollment period for disabled veterans; and provisions seeking to improve women's health (among countless others) are all unrelated to the individual mandate and could go into effect as Congress intended them to, regardless of the fate of the individual mandate. For this very reason, in the Virginia lawsuit raising the same issues, Judge Hudson concluded that the individual mandate was severable from the rest of the statute and refused to void the entire law.
Indeed, some of the Court's most significant severability decisions of the past decade have left federal statutes intact even though the Court's constitutional analysis had removed key features of the regulatory scheme. Thus, last Term's decision in the PCAOB case left the Public Company Accounting Oversight Board intact even as the Court invalidated the two-layer "for-cause" removal provisions for PCAOB members that had been the principal reason for creating a separate body from the SEC. And the Court's 2005 decision in Booker left the Sentencing Reform Act of 1984 (and the U.S. Sentencing Guidelines) intact despite holding that mandatory application of the prescribed sentences violated the Sixth Amendment. The centrality of the individual mandate is thus part of the analysis, but hardly compels the conclusion that the rest of the bill must fall.
In addition to claiming that Congress would prefer no statute at all to one without an individual mandate, Judge Vinson wrote that determining which provisions were sufficiently independent to survive would require him to engage in "quasi-legislative line drawing," and would be "tantamount to rewriting a statute in an attempt to salvage it." Here, again, we believe Judge Vinson erred by refusing to engage in the routine process of determining which parts of a statute survive severability analysis. Judge Vinson feared that this task would "substitute the judicial for the legislative department of government." But as the Supreme Court has repeatedly emphasized, and as the presumption in favor of severability recognizes, it is far more deferential to Congress to seek to preserve portions of a statute than to strike it down in its entirety. Moreover, the well-established doctrine of severability necessarily requires judges to pick and choose which portions of a statute survive after one provision is declared unconstitutional.
We leave for others the debate over the constitutionality of the individual mandate on its merits. If one thing seems clear, though, it is that there is nowhere near sufficient indicia of legislative intent in the PPACA to conclude that the rest of the bill cannot survive the invalidation of the individual mandate. Judge Vinson claimed to be motivated by a desire not to rewrite the statute by judicial fiat, and that sentiment is admirable. But that very same fiat is on display when it's used to strike down a complex, carefully negotiated 2700-page law because of one offending provision.