'Severability' Could Save Health Law, Graham Says and Barrett Seems to Agree

October 14, 2020 

WASHINGTON -- Republicans have been working for a decade to destroy the Affordable Care Act. Judge Amy Coney Barrett has criticized Supreme Court decisions that failed to do so. And it looks like she will be on the court next month for arguments in a third major challenge to the law pressed by Republican state officials and the Trump administration.

All of this, Democrats have said, puts the law in grave peril.

But some Senate Republicans had a surprising response on Wednesday: They pointed to a doctrine of statutory interpretation called severability. Because of it, they suggested, their allies' own case against the health care law was a toothless exercise that was likely to fail.

It was an admission that the focus by Democrats on attacking Republicans -- and Judge Barrett -- for threatening the future of Affordable Care Act in the midst of the coronavirus pandemic has hit home.

Just minutes after the start of the second and final day of questions for Judge Barrett at her confirmation hearings, Senator Lindsey Graham, Republican of South Carolina, invited her to describe the severability doctrine. She knew why he was asking, and she was ready to play ball.

"What it means," she said, "is if you have a statute -- and the Affordable Care Act is obviously a very long statute -- if there is one provision within the statute that is unconstitutional, the question is whether that one section can simply be rendered null and excised from the statute."

That is the key issue in next month's case. After Congress zeroed out the penalty originally imposed by the legislation for not obtaining insurance under the so-called individual mandate, Republican state officials argued that the mandate was now unconstitutional. They added, more significantly, that this meant the entire law must fall.

In legal terms, they argued that the mandate was not severable from the balance of the law. In the Supreme Court, the Trump administration filed a brief saying precisely that: "The individual mandate is not severable from the rest of the act."

Severability is the legal equivalent of a game of Jenga: If you pull out one plank, will the entire tower topple?

Judge Barrett did not say how she would vote in the pending case, but her summary suggested that she was skeptical of the maximalist arguments made by the administration.

"The presumption is always in favor of severability," she said.

Mr. Graham summarized what he had heard. "The main thing is the doctrine of severability has a presumption to save the statute if possible," he said. That was, he said, a conservative approach that allows Congress rather than the courts make the key policy decisions.

"I want every conservative in the nation to listen to what she just said," Mr. Graham said. "That is the law, folks."

The senator, if not the nominee, seemed to say that the health care law was not in real danger next month and that Judge Barrett's presence would not alter the calculus.

Legal experts were reluctant to draw broad conclusions from the exchange.

"Reading the tea leaves here is hard," said Nicholas Bagley, a law professor at the University of Michigan who filed a supporting brief in the new Supreme Court case along with scholars across the ideological spectrum. The brief argued that "the question here is not debatable: The mandate is severable from the rest of the A.C.A."

"To my eyes," Professor Bagley said, "the most telling part of Barrett's response is her aside that 'the Affordable Care Act is obviously a very long statute.' Her response suggests -- very weakly -- that she may see something anomalous about unraveling all of Congress's handiwork just because a toothless mandate is constitutionally defective."

ImageWhile Judge Barrett's comments about severability were arguably at odds with the legal positions taken by Republicans in the pending case,  they were consistent with recent Supreme Court opinions.
While Judge Barrett's comments about severability were arguably at odds with the legal positions taken by Republicans in the pending case, they were consistent with recent Supreme Court opinions.Credit...Erin Schaff/The New York Times

Judge Barrett also made more general statements about the health care law on Wednesday. "I am not hostile to the A.C.A. at all," she said. But that was in some tension with what she had said over the years about earlier Supreme Court challenges before she became a judge.

In a 2017 law review article, Judge Barrett was critical of Chief Justice John G. Roberts Jr.'s 2012 opinion sustaining the mandate. "Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute," she wrote.

In an interview after the Supreme Court rejected a second challenge to the law in 2015, this one concerning tax subsidies to help poor and middle-class people buy health insurance, she said, "I think the dissent has the better of the legal argument."

"That's not to say the result isn't preferable," Judge Barrett said at the time. "It's clearly a good result that these millions of Americans won't lose their tax subsidies."

While Judge Barrett's comments about severability were arguably at odds with the legal positions taken by Republicans in the pending case, they were consistent with recent Supreme Court opinions.

In June, the court ruled that a provision of the law creating the Consumer Financial Protection Bureau was unconstitutional. But Chief Justice Roberts said the rest of the law could stand. "We think it clear that Congress would prefer that we use a scalpel rather than a bulldozer in curing the constitutional defect we identify today," he wrote.

About a week later, in a case on a federal law regulating robocalls, Justice Brett M. Kavanaugh made a similar point. "Constitutional litigation is not a game of gotcha against Congress, where litigants can ride a discrete constitutional flaw in a statute to take down the whole, otherwise constitutional statute," he wrote.

There is an element of "gotcha," some legal scholars say, in the sequence of arguments in the latest challenge to the health care law. The arguments start with Chief Justice Roberts's 2012 opinion upholding the individual mandate as authorized by Congress's power to levy taxes.

That power disappeared, the argument goes, when Congress, after repeatedly failing to repeal the entire law, reduced the penalty associated with the individual mandate to zero.

That may or may not be so, but the answer to the question is by itself inconsequential. The larger issue is whether the mandate is severable from the rest of the statute.

Judge Barrett, answering a softball question from Mr. Graham, indicated that she was skeptical about that second step.

"If you can preserve a statute, you try to, to the extent possible?" he asked.

Judge Barrett responded, "That is true."

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