Severability and Subjective Intent

By Mike Dorf Judge Vinson's opinion yesterday in Florida v. U.S. Dep't of HHS conformed to the general expectation–based on his comments and questions at oral argument and his other rulings in the case–that he would find the individual mandate of the Patient Protection and Affordable Care Act beyond the power of Congress under the Commerce Clause. I've said my piece about the substance of that issue before (e.g., here and here), and so will let it pass for now. Here I want to make a few observations about Judge Vinson's remarkable conclusion that the entirety of the PPACA is invalid, i.e., that the law is utterly non-severable. I call that a remarkable conclusion because Judge Vinson did not merely hold that the portions of the Act that are intertwined with the mandate must fall with it. He also invalidated wholly unrelated provisions. Indeed, he readily acknowledged as much. Consider this passage from the severability portion of his opinion: The defendants have identified several provisions that they believe can function independently: the prohibition on discrimination against providers who will not furnish assisted suicide services; an "Independence at Home" project for chronically ill seniors; a special Medicare enrollment period for disabled veterans; Medicare reimbursement for bone-marrow density tests; and provisions devised to improve women's health, prevent abuse, and ameliorate dementia, as well as abstinence education and disease prevention. And as was mentioned during oral argument, there is little doubt that the provision in the Act requiring employers to provide a "reasonable break time" and separate room for nursing mothers to go and express breast milk can function without the individual mandate. Importantly, this provision and many others are already in effect and functioning. So why did Judge Vinson invalidate these provisions, given what he himself called the "the 'normal rule' that reviewing courts should ordinarily refrain from invalidating more than the unconstitutional part of a statute"? He gave two reasons, both of which strike me as problematic. 1) Judge Vinson appeared to base the total nonseverability decision partly on what he took to be Congressional intent. Given that the core purpose of the Act was to cover more people at lower cost, and given that the invalidation of the mandate–and with it the exchanges–would undermine that core purpose, Judge Vinson thought that Congress would not have passed the rest of the Act without the mandate. He's right that prior cases had sometimes said that a provision of a law may be nonseverable if Congress would have intended the Act to stand or fall as a whole, but to my knowledge the Court has never actually invalidated wholly unrelated provisions (like the break-time-for-nursing-mothers provision) on the basis of such imputed subjective intent. Judge Vinson's approach ought to be especially unappealing to the Supreme Court's "textualists," who don't even like to speculate about what Congress subjectively intended by the language it enacted. How much worse it should be to speculate about what Congress might have done if it had known that a provision it enacted would subsequently be found invalid. 2) Judge Vinson also invoked the difficulty of the task of figuring out, for each of the Act's provisions, whether Congress would have enacted it if it knew the mandate were going to be invalidated. But at best this argument proves too little. The Act's provisions fall into three categories: a) Those that are clearly intertwined with the mandate, such that the mandate's invalidation entails their invalidation as well; b) Those (like an IRS Form 1099 reporting requirement that he cites) that may or may not be deemed intertwined with the mandate but fall into a nether region; and c) those (like the break-time-for-nursing-mothers provision) that have nothing to do with the mandate or with any provision in category a) or b) that will be invalidated along with it. Judge Vinson says that going through the Act line by line will result in effectively rewriting the law, in violation of what the Supreme Court has urged. For now, I'll grant for the sake of argument that there are a fair number of provisions in categories a) and b) (although for reasons I'll elaborate in a later post, I don't think that there are). Even so, that does not explain why Judge Vinson thinks it necessary to invalidate provisions that fall into category c). As far as I can tell, the only argument he has for invalidating those provisions (putting aside his reliance on Congress's imputed subjective intent to pass nothing if there were no mandate) is that it's too much work to identify them.

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