Severability and Possible Judicial Power Grab?

The Supreme Court of the United States has heard, over the last three days, several arguments on President Obama’s Health Care plan. I wish to examine and extrapolate on the proceedings of this case, in particular the arguments heard on the morning of Wednesday the 28^th.

                The arguments heard on Wednesday morning were debating the severability of the Health Care statute. The “severability” of a statute (or bill) is that bill’s ability to still be a working piece of legislation without certain provisions (or aspects) of the bill in place. The positions that were advocated were: 1. The bill is not severable, if the individual mandate is declared unconstitutional then the rest of the bill should fall. 2. The Court does not have the ability to consider the question of severability because the other provisions of the bill apply to people who are not litigating before the court. 3. The bill is severable, and if the individual mandate is declared unconstitutional then the rest of the bill can still stand. Allow me to dissect the political jargon in those positions; for some back ground into the Patient Protection and Affordable Care Act, the “individual mandate” is a mandate (or federal requirement) that every person has health insurance by 2014 or pays a penalty. Two other key provisions are the “guaranteed-issue,” (that everyone has insurance available to them regardless of health risk) and “community-rating” (where everyone is charged the same price for the same type of coverage at the same age without any other type of discrimination)

                Back, briefly, to the issue of the individual mandate; I do not plan to burden you with my two-bits-worth opinion about the individual mandate, but I will give you two quotes from the arguments brought before the Supreme Court,

                “Here [in this bill] Congress is regulating existing commerce, economic activity that is already going on – people’s participation in the health-care market”

-          Donald Verrilli

-          Solicitor General, representing the government

Then in response,

“The Commerce Clause gives Congress the power to regulate existing commerce. It does not give Congress the far greater power to compel people to enter commerce.”

-          Paul Clement

-          Former Solicitor General, representing opponents to the law

You may decide whether the individual mandate is constitutional. In making its decision concerning the individual mandate along with the rest of the questions debated this week, the Court must also address severability. As I read and listened to the official court transcript concerning the question of severability, I noticed something that came up repeatedly throughout it. The Justices kept asking for an example of a case on severability that was close to this one.

“JUSTICE SCALIA: Mr. Kneedler… When have we ever really struck down what was the main purpose of the Act, and left the rest in effect?

MR. KNEEDLER: There is no example -

JUSTICE SCALIA: There is no example. This is really -

MR. KNEEDLER: — to our — to our — that we have found that suggests the contrary.

JUSTICE SCALIA: This is really a case of first impression. I don't know another case where we have been confronted with this — with this decision.

Can you take out the heart of the Act and leave everything else in place?”

Then again when the Amicus Curiae (friend of the court) was advocating his position,

“JUSTICE BREYER: I would say stay out of politics. That's for Congress; not us. But the, the question here is, you've read all these cases, or dozens, have you ever found a severability case where the Court ever said: Well, the heart of the thing is gone; and, therefore, we strike down these other provisions that have nothing to do with it which could stand on their feet independently and can be funded separately or don't require money at all.

MR. FARR: I think the accurate answer would be, I am not aware of a modern case that says that. [I] think there probably are cases in the '20s and '30s that would be more like that.”

                For some reason the Justices kept pushing that question; a question that I believe they already knew the answer to, since after Mr. Farr’s answer they seemed satisfied. I believe they are well aware of the position of power they are now in. Most Acts of Congress include something called a “severability clause” that explains that if part of the bill is struck down the rest will remain in effect and continue to function. While the final decision concerning constitutionality is still with the Court, when a severability clause is present the Court has to come up with a very good reason to strike down the entire Act. However in the Affordable Care Act, the severability clause was left out. In fact there was no severability language included anywhere in the bill. The Supreme Court now has been empowered with deciding on a much larger scale than any previous case, legislative intent. In other words they can decide, “What did Congress mean to do?” Did Congress intend for elements such as guaranteed issue or community rating to continue in effect even if there is no individual mandate? While severability cases have existed in the past, they have never dealt with something quite this massive in scale.

                The undertone of all this is that the Court has the potential to exercise what some might see as judicial activism. At a minimum, they might establish a potentially far-reaching precedent concerning severability. In June we will see what kind of power the Court chooses to exercise.  I think the opinions will make for some interesting reading.

All direct quotes are from the Official Transcript of Florida v. Department of Health and Human Services, copies for all 3 days of hearings can be found on NPR’s website.