Wednesday, December 29, 2010

The severability arguments in Florida v. HHS

Santa Clara University Graduate Fellow Brandon Douglass has prepared this helpful summary of the parties' respective arguments concerning the issue of severability in Florida v. HHS, a matter that appeared to attract a fair degree of Judge Vinson's attention at the recent hearing.

 Again, the most interesting development from the December 16 oral argument in Florida v. Sibelius may have been Judge Vinson’s remarks concerning the issue of severability. Judge Vinson perceived the severance of the individual mandate as similar to the removal of a wheel from a clock—it will prevent the whole from functioning. Because of this and the numerous provisions of the ACA that have already gone into effect, Judge Vinson seamed reticent on this issue, regardless of how clearly he appeared to indicate his views on the constitutionality of the individual mandate. This issue is likely to arise in several of these lawsuits, so it is useful to expand on the parties’ arguments regarding the severability of §1501(b).

The states raised the severability issue in their memorandum in support of their motion for summary judgment (MSJ), aggressively arguing that the court should declare the entire ACA unconstitutional and immediately unenforceable in its entirety. In regard to the individual insurance mandate and Medicaid provisions, the states claim that neither can be severed from the Act “[b]ecause each of these portions is essential to the ACA as a whole.” (MSJ at 45.) Though they admit that it is not dispositive, the plaintiffs argue that it is “highly instructive that Congress did not include a severability clause,” as “the absence of a severability clause speaks volumes as to Congress’s intent and the functional interdependency of the ACA’s central provisions, including the Individual Mandate and Medicaid Alterations.” (Id. at 47.) They claim that “the Individual Mandate is the linchpin of the ACA and its stated mission to achieve near-universal healthcare insurance coverage is beyond reasonable dispute, especially in light of Congress’s own declarations and Defendants’ admissions.” (Id.) In support of this claim, they cite Judge Vinson’s prior conclusion that the United States has already conceded that the “individual mandate was ‘essential’ to the insurance market reforms contained in the statute.” (Id.) With this, the states argue that the individual mandate “is ‘so interwoven with’ the Act’s coverage provisions ‘that they cannot be separated.’” (MSJ at 48.) Also, they assert, “the slender margin of the ACA’s House passage renders entirely speculative any assertion that the Act would have passed had any provisions been omitted or changed.” (Id.) Thus, “as a matter of law, the mandate’s unconstitutionality renders the entire Act unconstitutional, warranting the declaratory relief sought in Count One of the Amended Complaint.” (Id.)

Similarly, the plaintiffs argue that the Medicaid provisions are unseverable because they comprise an “integral part of ‘the Act’s comprehensive scheme to ensure that health coverage is available and affordable’”—“[t]hose provisions also are ‘so interwoven with’ the Individual Mandate and the overall architecture of the Act ‘that they cannot be separated.’” (Id at 49.) Because of this, “there is no basis for any reasonable inference that Congress would have passed the ACA without the transformative Medicaid provisions.” (Id.)

Obviously, the United States has offered a different take. In its motion in response, the federal government argues that “even if [the court] were to rule in the plaintiffs’ favor on their summary judgment motion,” it “should defer until the remedies states any decision on the extent to which other provisions of the Act would fall with the minimum coverage provision or Medicaid eligibility provisions.” (RMSJ at 38.) Assuming, however, that Judge Vinson will address the issue sooner rather than later, the United States argues that “the vast majority of the ACA’s provisions are severable from those challenged by the plaintiffs.” (Id.)

The federal government contends that the court “must ‘strive to salvage’ as much of a statute as possible, as only the statute, and not the court’s ruling, is a product of the democratic process.”  (Id. at 39.) It lays out a two-part test. First, “after finding a portion of a statute unconstitutional, the court determines whether the remaining portions remain ‘fully operative as a law.’” (Id.) If they do, then the remainder of the Act is “presumed severable.” (Id.). Second, once the existence of the presumption is determined, the court will look to whether it is “‘evident’ that Congress would have preferred the rest of the statute (or particular portions) to be invalidated along with the unconstitutional provision.” (RMSJ at 39.)

The United States concedes that, “[u]nder these principles, some limited set of provisions of the Act cannot survive if the minimum coverage provision is stricken.” (Id. at 40.) Among these provisions are the “guaranteed issue” and “community rating” insurance industry reforms of ACA §1201. (Id.) But there are many other parts of the statute that “are plainly severable from both the minimum coverage provision and the Medicaid eligibility provisions.” (Id.) These include provisions prohibiting “discrimination against providers who will not furnish assisted suicide services,” establishing “Independence at Home” demonstrations for chronically ill senior citizens, and for “improving women’s health.” (Id.) The federal government argues that “[t]hese and countless other provisions of the Act are entirely capable of being applied even if either or even both the minimum coverage and Medicaid eligibility provisions were struck down.” (Id.) This is so regardless of the absence of a severability clause, because that absence “does not raise a presumption against severability.” (RMSJ at 41.)

The United States responded directly to the states’ argument concerning the politics of the ACA’s passage in the absence of certain provisions. (Id.) To the federal government, it is the plaintiffs who bear the burden of showing “that it is ‘evident’ that Congress would have preferred all or particular parts of the statute to be invalidated along with the unconstitutional provisions.” (Id.) And, the United States argues, the states’ “speculation that Congress would prefer the other provisions of the Act to be invalidated does not even come close to making that conclusion evident.” (Id.)