SCOTUSBlog is running an excellent symposium on the constitutionality of the Affordable Care Act. A recent post by Abbe Gluck and Gillian Metzger touches on an important point about the remedy. They first argue that the mandate is not unconstitutional. They then argue that if the mandate is unconstitutional, then it may be severable. They write:
In the context of the Commerce Clause inquiry, the mandate is a well-tailored “necessary and proper” means by which Congress can achieve the ACA’s goals. But that does not necessarily mean that, as a remedial matter, if the mandate falls, the Court need or should do more than simply sever it and leave the rest to Congress.
This observation is accurate. The test for constitutionality under the Necessary and Proper Clause does not line up directly with the test for severability. The point has been clouded by the federal government’s litigation decision to concede the inseverability of the mandate from some of the ACA’s insurance-related provisions. This “concession” is designed to serve two functions: (1) to bolster the case for constitutionality, which may turn on whether the individual mandate is an “essential part” of a larger regulatory scheme; and (2) to increase the cost of invalidating the individual mandate.
My only objection is that Gluck and Metzger do not go far enough, endorsing only the conclusion that the mandate “may” be severable. The case can and should be made that the mandate is severable–a case that could be made along lines I suggested (albeit in a descriptive/predictive rather than forensic mode) in a guest post on Balkinization this past February:
For different reasons, the Court’s pragmatists, minimalists, and textualists have good reason to move severability doctrine away from the sort of backward-looking counterfactual speculation that yielded Judge Vinson’s holding of inseverability (i.e., the determination that the individual mandate was inseverable from the remainder of the Act because Congress would not have enacted the Act without the mandate). While a detailed doctrinal analysis to support this assertion would be more appropriate for another venue, a careful review of the Court’s severability reasoning in United States v. Booker and Free Enterprise Fund v. Public Company Accounting Oversight Board suggests directions in which the Court may be moving the doctrine. Justice Breyer’s pragmatic approach to severability in Booker is more forward-looking and consequentialist than the standard approach. Chief Justice Robert’s approach to severability in Free Enterprise Fund emphasizes the need for clear evidence that Congress intended inseverability; given the typical absence of such evidence, the result of this approach is minimalist with respect to the scope of invalidation (though the pragmatic approach is more likely to be minimalist with respect to practical consequences). Finally, textualist Justices eschew, in other contexts, the sort of exercises in imaginative reconstruction that standard formulations of severability doctrine on their face require. Perhaps they might begin to do so in this context as well. For all these reasons, it is extremely unlikely that the Supreme Court would conclude both that the individual mandate is unconstitutional and also that the remainder of the Act is inseverable.
I provide some broader reasons, not specific to the mandate question, for disallowing inseverability doctrine’s expansion of holdings of unconstitutionality in Partial Unconstitutionality, 85 N.Y.U. L. Rev. 738 (2010).