Health reform and the “severability clause”—Will the entire Act be declared unconstitutional because of the individual mandate?

Frequently when Congress passes a major law such as health reform it will include what is called a “Severability Clause” such as: “If any particular provision of this Act, or the application thereof to any person or circumstance, is held invalid, the remainder of the Act and the application of such provision to other persons or circumstances shall not be affected thereby.” The purpose of the clause is to provide guidance to the courts in deciding whether the whole Act should be deemed unconstitutional because one piece of the Act is unconstitutional.

The Health bill does not appear to contain a severability clause. That would appear to make it easier for opponents of the legislation to have the whole Act thrown out by simply getting the court to agree that a single provision, such as the mandate to purchase insurance is unconstitutional.

So, how big a problem is the lack of a severability clause? Maybe not as much as it would appear. In fact, courts can declare an entire Act unconstitutional based on a single section of the law being deemed unconstitutional whether or not the Act contains a severability clause.

Let’s assume the state attorneys general are able to get the courts to agree that the mandate to purchase insurance is unconstitutional. Does that automatically mean that the court will declare the entire Act unconstitutional? Not necessarily. After declaring a section of an Act unconstitutional, the courts determine whether the remainder of the Act remains valid. The guiding principle is this according to a report on statutory interpretation from the Congressional Research Service quoting a ruling in Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987) (quoting Buckley v. Valeo, 424 U.S. 1, 108 (1976)). “Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.”

In other words, if the individual mandate to purchase health insurance is declared unconstitutional, then the issue will become whether Congress would have enacted the rest of the ACT if there were no individual mandate. We can be fairly certain that four members of the Supreme Court (Scalia, Thomas, Alito, and Roberts) will rule that the entire Act is unconstitutional if they can find any piece of the Act unconstitutional such as the individual mandate. The question then becomes how the remaining five members of the court will rule. It should be very interesting.

Here is more about the severability clause from the Congressional Research Service.

From Congressional Research Service Report to Congress, “Statutory Interpretation: General Principles and Recent Trends,” Updated August 31, 2008 by Yule Kim, Legislative Attorney, American Law Division, See page 38.. Available at http://www.fas.org/sgp/crs/misc/97-589.pdf

CRS-38

Severability

When one section of a law is held unconstitutional, courts are faced with determining whether the remainder of the statute remains valid, or whether the whole statute is nullified. “Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.”214 Congress frequently includes a pro forma severability clause in a statute,215 and this reinforces a “presumption” of severability by removing much of the doubt about congressional intent.216 A severability clause does not guarantee, however, that what remains of a statute after a portion has been invalidated is “fully operative”; courts sometimes find that valid portions of a statute cannot stand on their own even though Congress has included a severability clause.217 Far less frequently, Congress includes nonseverability language providing that remaining sections of a law shall be null and void if a part (sometimes a specified part) is held unconstitutional.218 Case law is sparse,219 but there is no apparent reason why courts should refuse to honor a clearly expressed non-severability directive.220

Footnotes:

214 Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987) (quoting Buckley v. Valeo, 424 U.S. 1, 108 (1976)).

215 See, e.g., 2 U.S.C. § 1438 (§ 509 of the Congressional Accountability Act of 1995): “If any provision of this Act or the application of such provision to any person or circumstance is held to be invalid, the remainder of this Act and the application of the provisions of the remainder to any person or circumstance shall not be affected thereby.” These provisions are also sometimes called “separability” clauses. See, e.g., 29 U.S.C. § 114.

216 Alaska Airlines, 480 U.S. at 486. Absence of a severability clause does not raise a presumption against severability. New York v. United States, 505 U.S. 144, 186 (1992).

217 “A severability clause requires textual provisions that can be severed.” Reno v. ACLU, 521 U.S. 844, 882 (1997). See also Hill v. Wallace, 259 U.S. 44 (1922); and Carter v. Carter Coal Co., 298 U.S. 238, 312-16 (1936).

218 See, e.g., 25 U.S.C. § 941m(a) (§ 15(a) of the Catawba Indian Tribe of South Carolina Land Claims Settlement Act of 1993): “If any provision of section 941b(a), 941c, or 941d of this title is rendered invalid by the final action of a court, then all of this subchapter is invalid.”

219 But see, e.g., Zobel v. Williams, 457 U.S. 55, 65 (1982) (observing in dictum that, due to inclusion of non-severability language in an Alaska law, “we need not speculate as to the intent of the Alaska Legislature”).

220 See Israel E. Friedman, Comment, Inseverability Clauses in Statutes, 64 U.CHI. L.REV. 903 (1997). Friedman contends that “inseverability clauses are fundamentally different from severability clauses and should be shown greater deference.” Id. at 904. Inseverability clauses, he points out, “are anything but boilerplate,” usually are included only after extensive debate, and are often designed to preserve a legislative compromise. Id. at 911-13.