Hard to argue that Congress didn't intend to keep ObamaCare in 2017, say ... Roberts and Kavanaugh

Get ready for the last major anti-climax from the Amy Coney Barrett confirmation hearings. The Supreme Court heard arguments in California v Texas this morning, where opponents of ObamaCare argue today that the cancellation of penalties for violating the individual mandate revokes its status of a “tax” — and with it the constitutionality of the mandate.

Is that severable from the rest of the statute? Challengers claim it cannot be severed and therefore the whole law has to be tossed. Thus far, though, it sounds as if they’re not even carrying the conservatives:

Kavanaugh returned to the point more strongly later in the presentation:

No one thought that  justices Elena Kagan and Stephen Breyer would be all that amenable to a severability argument in the first place, but conservatives hoped that Brett Kavanaugh would be a vote for ruling the entire ACA unconstitutional. That flew in the face of Kavanaugh’s actual votes and opinions on severability, as SCOTUSblog pointed out. Kavanaugh’s decision in Barr v AAPC relied more on textual presuppositions, but not entirely on them:

When Congress includes an express severability or nonseverability clause in the relevant statute, the judicial inquiry is straightforward. At least absent extraordinary circumstances, the Court should adhere to the text of the severability or nonseverability clause. That is because a severability or nonseverability clause leaves no doubt about what the enacting Congress wanted if one provision of the law were later declared unconstitutional. A severability clause indicates “that Congress did not intend the validity of the statute in question to depend on the validity of the constitutionally offensive provision.” Alaska AirlinesInc. v. Brock480 U. S. 678, 686 (1987). And a nonseverability clause does the opposite.

On occasion, a party will nonetheless ask the Court to override the text of a severability or nonseverability clause on the ground that the text does not reflect Congress’s “actual intent” as to severability. That kind of argument may  have carried some force back when courts paid less attention to statutory text as the definitive expression of Congress’s will. But courts today zero in on the precise statutory text and, as a result, courts hew closely to the text of severability or nonseverability clauses. …

Of course, when enacting a law, Congress often does not include either a severability clause or a nonseverability clause.

In those cases, it is sometimes said that courts applying severability doctrine should search for other indicia of congressional intent. For example, some of the Court’s cases declare that courts should sever the offending provision unless “the statute created in its absence is legislation that Congress would not have enacted.” Alaska Airlines480 U. S., at 685. But experience shows that this formulation often leads to an analytical dead end. That is because courts are not well equipped to imaginatively reconstruct a prior Congress’s hypothetical intent. In other words, absent a severability or nonseverability clause, a court often cannot really know what the two Houses of Congress and the President from the time of original enactment of a law would have wanted if one provision of a law were later declared unconstitutional.

The Court’s cases have instead developed a strong pre- sumption of severability. The Court presumes that an unconstitutional provision in a law is severable from the remainder of the law or statute. For example, in Free Enterprise Fund v. Public Company Accounting Oversight Bd., the Court set forth the “normal rule”: “Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem, severing any problematic portions while leaving the remainder intact.” 561 U. S. 477, 508 (2010) (internal quotation marks omitted); see also Seila Lawante, at 32 (same). In Regan v. TimeInc., the plurality opinion likewise described a “presumption” in “favor of severability” and stated that the Court should “refrain from invalidating more of the statute than is necessary.” 468 U. S. 641, 652-653 (1984).

This is an originalist position, although perhaps not the exclusive originalist position. An originalist approach would require the courts to only excise that which directly fails a constitutional test and leave the rest of a statutory structure in place. Otherwise, they should defer to the legislature on all other statutes and policies. If that excision creates failure and confusion, it would be the task of the legislature to fix it, not the courts.

It’s not just the originalists questioning this challenge, either. Chief Justice John Roberts also expressed his skepticism of the argument that the court should strike down the entire ACA. If that’s what Congress as a whole wanted with its 2017 change that eliminated the mandate penalty, then they should have struck the whole law down instead. That action makes it look very much like Congress endorsed the severability of the mandate:

About the only positive comment in support of the idea of non-severability has come from Neil Gorsuch, who says a lack of penalty might not equal a lack of enforcement. That came more on the arguments about standing rather than severability, however:

As for Barrett, she also raised the issue of whether the penalty has been repealed. The language still exists in the statute, even if the dollar value has been dropped to zero:

Again, this took place in the context of standing, not severability. The court could take the easy way out of this challenge by declaring that the plaintiffs had no standing to bring the lawsuit in the first place. They won’t get penalized for non-compliance, therefore having no potential damages from the law, and therefore no standing to challenge it. That’s what Kavanaugh’s question in the preceding tweet addresses, but Breyer later noted that Congress passes all sorts of “hortatory” and “precatory” bills urging Americans to pray, to eat their peas, and so on. They have no real impact and no real enforceability, which means that they present no real constitutional issues … which is itself an originalist perspective. If voters don’t like hearing “hortatory” and “precatory” message from Congress, they can jolly well elect others to represent them in Washington.

It is usually a fool’s errand to predict outcomes on the basis of the Socratic debate that takes place in oral arguments at the Supreme Court. However, it seems pretty clear that both Roberts and Kavanaugh are leaning toward the severability position that would keep ObamaCare in place. That’s if they even get to that question, or otherwise reject the challenge on standing alone. The odds were always long on California v Texas, and they look even longer after today.

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