Wednesday, June 6, 2012
- Somebody Stop Me!
The first time I read a statutory severability provision I said to myself, “I just wasted my concentration on something that will never be important.” Yet, severability will become a burning national issue, if the Supreme Court finds that the feds cannot compel people to enter into an unwanted contract, as now required by the individual mandate in Obamacare. We live in strange times. The Court has been called upon to decide whether to keep parts of Patient Protection and Affordable Care Act (ACA), or throw out all of it, by looking at “severability” in National Federation of Independent Business v. Kathleen Sebelius. I will try here to tell the Radio Free NJ readers what the mainstream media will have you miss, if the Court invalidates all of Obamacare, rather than just parts of it.
A legislature may best preserve all parts its legislation, by including a simple statutory severability provision. These read something like, “If a provision of this Act becomes illegal, invalid or unconstitutional, the remaining portions shall remain effective.” This is Legislation 101, because a court will generally respect the intention of legislature to keep the good, while throwing out the bad. However, not every law enacted by Congress includes a severability clause.
For example, Sarbanes-Oxley does not have a severability provision, while it created a regulatory board within the SEC acting so independently of the President that the Court found its tenure unconstitutional in Free Enterprise Fund v. Public Company Accounting Oversight Board. As a result, the Court felt compelled to consider whether to invalidate the entire law, because, “nothing in the statute’s text … makes it ‘evident’ that Congress … would have preferred no Board at all to a Board whose members are removable at will.”
I am no fan of Sarbanes-Oxley. Any law that passes the Senate 97-0 is probably a bad law. Be that as it may, the constitutionally valid portions of Sarbanes-Oxley remained standing, because the Court generally tries to limit its solution to an unconstitutional provision by “severing” any “problematic portions while leaving the remainder intact,” “[u]nless it is evident that the Legislature would not have enacted those provisions . . . independently of that which is [invalid].” That is a very big “unless.”
As a nation, we enacted Obamacare, and are learning what is in it - hat tip to Nancy Pelosi. There is no severability provision. The House bill contained one, but the Senate deleted it, and then, after making all sorts of private deals, it just barely passed. As a result, the Court must now look with x-ray eyes at whether Congress would have enacted everything but the individual mandate on a stand alone basis, Cornhusker compromise and all.
Those who argue the entire ACA should fall have said it will be an “empty shell” without the mandate. At its simplest, the ACA requires insurers to accept insureds with preexisting conditions, without charging a higher premium, because the individual mandate will bring in the healthy uninsured to increase insurer revenues, making the whole scheme economically feasible. They argue that no statute remotely resembling the ACA would or could have been enacted, without the individual mandate at its heart. That sounds pretty strong to me.
But there is a little bit more to this than meets the eye. The Constitutional power of the Court is limited. That is why it carefully considers whether Congress wanted otherwise valid laws contained in a package with unconstitutional laws to stand on their own. If Congress would not have passed the good laws in the same package with the bad, but the Court keeps the good, while letting the bad fall by the wayside, then you have pure judicial legislation. “Judicial restraint” prevents the Court from overstepping its constitutional role. Otherwise, you get Jim Carey as a Supreme Court Justice putting on The Mask and saying, “Somebody stop me!”
The Court, in a very unusual move, took argument on severability alone on March 28, 2012. Part the Justice Kennedy colloquy is quite telling. The feds strategically promoted a rule that would leave as much of Obamacare in place as possible, by arguing that “judicial restraint” required the Court to refrain from even considering striking down the parts of Obamacare that no party argued was unconstitutional. Justice Kennedy interrupted the oral argument, saying, “I suggest to you it might be quite the opposite.” If the Court struck down only one portion of a law and “the others remained to impose a risk on insurance companies that Congress had never intended,” “we would have a new regime that Congress did not provide for,” which may be, “a more extreme exercise of judicial power than … than striking the whole.” When the state replied, “I think not,” Justice Kennedy just said, “I just don't accept the premise.”
This is a narrow point lost, but it illustrates judicial thinking from a mind many put in the center of the Court. The Court knows its role is not to send a bill back to Congress to reconsider some portion of it. It does not have a line item veto. Here, to pass Obamacare, Congress made all sorts of "cards face down" horse trades, and then went “all in.” The bid is now for the Court alone to play.
If the Court acts as a constitutionally constrained court and not a legislature, it should strike down the whole deal, Corn Husker Compromise and all. It might possibly conduct its own hearings to decide whether Congressional reauthorization of the Indian Healthcare Improvement Act, changes to Black Lung benefits, or anything else that we didn’t know was “in it” before we passed it, should stand alone. But I think it knows taking on such a hot potato would be foolhardy.
So if the Court finds the individual mandate unconstitutional, and the remaining portions of Obamacare not severable, you will hear MSM parroting something like this over and over: “In a surprise move, the conservative members of the Supreme Court banded together to strike all of Obamacare, rather than keeping the parts that pass constitutional muster. The Administration has expressed disappointment that the Court divided along partisan lines to kill a popular a law passed by both houses of Congress.” You won’t hear anything about the total absence of a statutory severability provision or that the Congress really wanted to pass the Cornhusker Compromise without the rest of Obamacare.