Severability as Deregulation: The Construction of a New Doctrine Through Affordable Care Act Litigation

Abstract

Scholars have sharply criticized the plaintiffs’ severability argument in the ongoing challenge to the Affordable Care Act (ACA), California v. Texas, as a flawed application of contemporary severability doctrine that would disrupt broad swaths of the U.S. healthcare system. This Article argues that the severability argument put forward by the Texas plaintiffs, as well as the District Court’s severability analysis in that case, the Department of Justice’s severability argument on appeal, and the severability argument made by the so-called “Joint Dissent” in National Federation of Business v. Sebelius together represent an emerging doctrinal alternative to the traditional, Alaska Airlines severability doctrine. The key feature of the new doctrine is a super-strong presumption of inseverability that would apply to all of the constitutional provisions in a partially unconstitutional statute. Under such a doctrine, wholesale invalidation of partially unconstitutional statute would become the rule. Regardless of the outcome in California v. Texas, adoption of parts of the “Joint Dissent/Texas doctrine” would radically alter courts’ approach to severability and forward a deregulatory agenda.

The Joint Dissent/Texas doctrine was forged in litigation challenging a singular legislative product, the Affordable Care Act. But the origin of the doctrine in public choice accounts of the legislative process underscore the fact that the super-strong presumption of inseverability would apply to most if not all partially unconstitutional statutes. The Joint Dissent/Texas doctrine is also a response to a changed legislative reality. Congress increasingly relies on omnibus legislation, folding in provisions that cover a wide range of policy areas. Adoption of the Joint Dissent/Texas doctrine would be a powerful intervention by the Court into the legislative processes that Congress has adopted in recent decades. The Joint Dissent/Texas doctrine, if adopted, would have far-reaching effects on the relative allocation of power between Congress on the one hand and the states, the courts, and the President on the other. And in each case, Congress would find itself on the losing end. The doctrine would shift power away from Congress in an era in which congressional power is already at a nadir. Regardless of the outcome in California v. Texas—regardless of the contours of the Affordable Care Act and the U.S. healthcare enterprise in the wake of the Supreme Court’s expected decision—the Joint Dissent/Texas approach to severability is an emerging reality that must be reckoned with.

Keywords: severability, affordable care act

JEL Classification: I18