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NRO’s health-care blog.

Swinging for the Fences on Severability



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Tuesday’s Supreme Court arguments on the individual mandate were certainly the main event from the constitutional-law perspective. But from the health-policy perspective, Wednesday’s arguments over severability were the top draw.

Even with the individual mandate in place, Obamacare is an unstable and unworkable mess. Should the Court strike only the mandate, the practical result would be to merely accelerate Obamacare’s inevitable, functional collapse.

Thus, from the perspective of health policy the more interesting question before the Court is that of severability — or, how the Court deals with the rest of Obamacare if it strikes the mandate as unconstitutional.

As Robert Alt and I noted recently, the Court has three options on severability — none of which is attractive from the Justices’ perspective:

1) Strike only the mandate, and leave the rest of the statute. That would be the equivalent of pulling the pin before tossing the hand grenade back to Congress.

2) Map the complex interrelationships between the mandate and numerous other provisions, and then try to divine a rationale for discarding (along with the mandate) some provisions, but not others.

3) Conclude that the first option is irresponsible and that the second is impossible, and therefore follow their own stated legal standard to strike the whole law — despite that being an uncomfortable practical position for most judges.

Thus, Wednesday’s oral argument on severability was essentially an exercise in the Justices trying to determine which option, from their perspective, was “least ugly.”

As the questioning unfolded it seemed that the Justices (including the Court’s liberals) grasped that discarding only the mandate and hoping for the best would be irresponsible. At least the more conservative ones also seemed to struggle with how they might find some number of other provisions to be non-severable (including even the few offered by the government) without severability devolving into an illogical and impossible exercise.

Indeed, in the questioning it became apparent that even adopting the government’s limited position of striking only a few provisions as “non-severable” from the mandate was internally inconsistent and no more logical than any other potential rationale for partial severability — points that Robert and I made in our paper. That conclusion also seemed to be reinforced (albeit, unintentionally) in the questioning of the Court-Appointed Amicus Curiae tasked with advocating for striking only the mandate — which was the decision of the Eleventh Circuit, but a position that neither the plaintiffs nor the government supported.

My overall impression was that the Justices appeared to be gravitating, reluctantly but inexorably, toward the solution that they were initially least inclined to embrace — that of striking down the whole law.

Given that context, what particularly intrigued me was that the plaintiffs’ attorney, Paul Clement, was clearly “swinging for the fences” on severability. Prior to oral arguments, there was an assumption, even among conservatives, that the plaintiffs’ argument for striking the whole law was a kind of “ask for the whole loaf to increase your chances of getting half a loaf” strategy. But Clement’s references to Buckley v. Valeo — not once, but three times, including making it the final point in his rebuttal argument — showed that he really was going for the home run.

Put in unvarnished terms, Clement was essentially saying to the Justices: “In Buckley v. Valeo, the Court struck some provisions but left standing others (including some constitutionally dubious ones), out of deference to Congress. Look at what that got you. Forty years of an unworkable statute and yet more constitutional challenges to it brought before you. The latest of those, Citizens United v. FEC, resulted in an unprecedented (and both institutionally and personally insulting) attack on you, to your face, by the president in his State of the Union Speech. That is the thanks you got for trying to be deferential to the political branches while legitimately exercising your duty to defend the First Amendment. Do yourselves, and everybody else, a big favor by not repeating that mistake in this case. Strike the whole law, and send the Congress and the president a message that they should think carefully about the Constitution before legislating. Sure, some of them are going to scream. But if you strike the whole thing, they only get to scream once.”

Of course, Clement didn’t need to spell it out quite so crassly. He knew that the Justices would read those unspoken inferences into his concluding statement — which, by the way, was also the last word in the entire argument over severability:

And that takes me to my last point, which is simply this court in Buckley created a halfway house and it took Congress 40 years to try to deal with the situation, when contrary to any time of their intent, they had to try to figure out what are we going to do when we are stuck with this ban on contributions, but we can’t get at expenditures because the Court told us we couldn’t? And for 40 years they worked in that halfway house. Why make them do that in health care? The choice is to give Congress the task of fixing this statute, the residuum of this statute after some of it is struck down, or giving them the task of simply fixing the problem on a clean slate. I don’t think that is a close choice. If the individual mandate is unconstitutional, the rest of the Act should fall.

I came away from the severability arguments thinking, for the first time, that the Court might actually strike down the entire law.

Of course that would be an excellent outcome for both the Constitution and the health system, but it would still not be the end of the matter. The Left would immediately begin bleating about the loss of Obamcare’s supposed “benefits” and attack the right for not having solutions to health-care problems. 

We on the right must be prepared to vigorously counter both lines of attack. Conservative health-policy experts at Heritage and elsewhere are already fact-checking the Left’s claimed “benefits” of Obamacare. Conservatives have also long advocated an alternative vision of a patient-driven, market-based health system, most recently summarized in Heritage’s Saving the American Dream proposal. While awaiting the Supreme Court’s decision, my colleagues and I will continue to advance in detail the benefits of conservative health reforms while also continuing to critique the flaws and failings of Obamacare.

— Ed Haislmaier is senior research fellow in health-policy studies at the Heritage Foundation.



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