This post appears here courtesy of the The Daily Wire
. The author of this post is Hank Berrien
On Tuesday, the Supreme Court began hearing oral arguments on a challenge to the Affordable Care Act (aka Obamacare) in the case California v. Texas. The case revolves around whether the plaintiffs have established standing to challenge the minimum-coverage provision in the act as well as whether the minimum-coverage provision can be "severed" from the rest of the ACA.
Some Republican-governed states have attacked the law's individual insurance mandate as unconstitutional, and thus they want the Supreme Court to repeal the entire law. As law.com reported
in July, "The Trump administration's U.S. Justice Department argues in the health care case California v. Texas that the entire health care insurance law should fall after Congress in 2017 eliminated the tax penalty for failure to purchase health insurance. The penalty provision could not be severed from the rest of the act because of its interrelationship to other critical features of the law, then-U.S. Solicitor General Noel Francisco said in a recent brief."
Both Chief Justice John Roberts and Justice Brett Kavanaugh, perceived as conservatives on the Supreme Court, have previously argued for the doctrine of severability, which would allow Obamacare to survive even if the insurance mandate is ruled unconstitutional.
Kavanaugh joined the 7-2 majority in Barr v. American Assn. of Political Consultants, ruling
that the Telephone Consumer Protection Act could be protected despite the exception for collection of government debts to the federal ban on cellphone robocalls, which could be severed from the act. Roberts wrote in Seila Law v. CFPB that the "for cause" removal protection for the director of the Consumer Financial Protection Bureau could be separated from the Dodd-Frank act that had created the bureau. He stated, "We think it clear that Congress would prefer that we use a scalpel rather than a bull- dozer in curing the constitutional defect we identify today."
In Seila, Justice Clarence Thomas countered
the Court's doctrine of severability, writing, "Because the power of judicial review does not allow courts to revise statutes, Mitchell, supra, at 983, the Court's severability doctrine must be rooted in statutory interpretation. But, even viewing severability as an interpretive question, I remain skeptical of our doctrine. As I have previously explained, 'the severability doctrine often requires courts to weigh in on statutory provisions that no party has standing to challenge, bringing courts dangerously close to issuing advisory opinions.'"
- In short, when multiple provisions of law combine to cause a constitutional injury, the Court's current approach allows the Court to decide which provision to sever. The text of a severability clause does not guide that choice. ... The Court is thus left to choose based on nothing more than speculation as to what the Legislature would have preferred. And the result of its choice can have a dramatic effect on the governing statutory scheme.
- It is incumbent on us to take a close look at our precedents to make sure that we are not exceeding the scope of the judicial power. Given my concerns about our modern severability doctrine and the fact that severability makes no difference to the dispute before us, I would resolve this case by simply denying the CFPB's petition to enforce the civil investigative demand.