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NRO’s domestic-policy blog, by Reihan Salam.

Does the Sarbox Ruling Sanctify Obamacare?



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Today, in Free Enterprise Fund v. Public Company Accounting Oversight Board, the Supreme Court invalidated a provision of the Sarbanes-Oxley Act without voiding the entire law.

This matters for the legal fight against Obamacare, as Sarbox did not have a “severability clause”—standard language that would ensure that, if one part of Sarbox was ruled unconstitutional, that part could be “severed” from the rest of the law, which would remain standing.

The Patient Protection and Affordable Care Act also lacks a severability clause. Some have therefore hoped that, if PPACA’s individual mandate is eventually ruled unconstitutional, the entire law would necessarily be voided along with it.

Today’s ruling by the Court, however, suggests that a severability clause is not needed in order to strike down one provision of a larger law (h/t Ross Kaminsky):

The unconstitutional tenure provisions are severable from the remainder of the statute. Because “[t]he unconstitutionality of a part of an Act does not necessarily defeat or affect the validity of its remaining provisions”… the “normal rule” is “that partial… invalidation is the required course.” The Board’s existence does not violate the separation of powers, but the substantive removal restrictions imposed by §§7211(e)(6) and 7217(d)(3) do. Concluding that the removal restrictions here are invalid leaves the Board removable by the Commission at will. With the tenure restrictions excised, the Act remains “‘fully operative as a law,’” and nothing in the Act’s text or historical context makes it “evident” that Congress would have preferred no Board at all to a Board whose members are removable at will. The consequence is that the Board may continue to function as before, but its members may be removed at will by the Commission.

I’m not a lawyer, but this suggests to me that the Court presumes severability unless non-severability is explicitly specified. Does anyone else have thoughts on this topic?



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