To Save and Not to Destroy: Severability, Judicial Restraint, and the Affordable Care Act

David Gans Director of the Human Rights, Civil Rights, and Citizenship Program at the Constitutional Accountability Center (CAC)

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"When a statute is partially unconstitutional, courts must endeavor to save, not destroy, the rest of the law,” explains David Gans, Director of the Human Rights, Civil Rights, and Citizenship Program at the Constitutional Accountability Center in a new ACS issue brief.

Gans both sets forth the contours of severability law and shows how some conservative activists are trying to revive Lochner-era understandings of severability to strike down the Affordable Care Act and the Consumer Finance Protection Bureau (CFPB). Gans concludes, “severability is not a liberal or conservative principle. It is a principle of judicial restraint, reflecting that, in the normal case, courts should order relief that fully remedies the constitutional violation and goes no further."

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