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?
Hi Avik,
I wanted to respond yesterday, but didn't make the 5pm cutoff.
I think the point is mostly theoretical and moot. If the Mandate in PPACA is found unconstitutional, then the effect is to render the entire law unworkable because it is the primary source of funds for the insurance companies and the only way to push back on the perverse incentive to hold off buying insurance until you are really sick.
Without the Mandate, PPACA would lead to financial ruin of the entire insurance market. Thus, there would be only two alternatives- (1) Repeal and replace or (2) crash the system and create the crisis necessary to move towards single-payer/government run healthcare.
It will be interesting to see which this President chooses if and when the SCOTUS rules on the Mandate...
Reply to this commentLinkReport AbuseHi Pickle,
I'm with you on the 5pm cutoff -- usually my habit is to review comments after work, which I will have to change for NRO.
I wouldn't say the law is unworkable without a mandate, because the mandate isn't that strong to begin with. That is to say, it's unworkable either way. But you're right that the community rating and guaranteed issue provisions of the law require a strong mandate in order to not blow up the system.
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