This post continues consideration of the alternative state standing theories advanced in Florida v. HHS but not yet ruled on by any federal court. An earlier post addressed the states’ lead standing theory, which is based on expenditures expected to result from the choices of some individuals to comply with the mandate by enrolling in Medicaid.
The States’ second standing theory relies on the asserted inseverability of the individual mandate from other statutory provisions that directly affect the States. Their Eleventh Circuit brief argues:
[T]he States have standing because they have alleged that the individual mandate renders the entire Act invalid on non-severability grounds. The States have standing to raise that argument so long as they allege that any of the Act‘s provisions causes them injury in fact, as such injury would be remedied by a declaration that the Act is invalid. See Brock, 480 U.S. at 684 (adjudicating claim that entire statute was invalid as a result of unconstitutional legislative veto provision, where plaintiffs alleged injury based on other portions of the statute). The States have plainly demonstrated injury in fact caused by the Medicaid and employer mandate reforms, and therefore have standing to seek invalidation of the Act on the ground that the individual mandate is unconstitutional.
In short, the States attempt to use inseverability to leverage their standing to challenge a part of the Act that does apply to them into standing to challenge a part that does not.
I have argued in my Eleventh Circuit amicus curiae brief and in my draft law review essay that this attempted use of inseverability doctrine is unprecedented and impermissible. I will not repeat those arguments word for word here, but instead set forth some of the key moves in the analysis.
The States rely on Alaska Airlines, Inc. v. Brock, 480 U.S. 678 (1987), which they describe as “adjudicating [a] claim that [an] entire statute was invalid as a result of unconstitutional legislative veto provision, where plaintiffs alleged injury based on other portions of the statute.” Not so.
Alaska Airlines is a case that consisted of multiple challenges by airlines to the Employee Protection Program in Section 43 of the Airline Deregulation Act of 1978.
Section 43(f)(1) of the Act authorized the Secretary of Transportation to promulgate regulations implementing the Program, while § 43(f)(3) authorized a one-house legislative veto of any final rule issued pursuant to § 43. See Alaska Airlines, 480 U.S. at 682.
The airlines challenged regulations promulgated under Section 43, i.e., regulations issued under § 43(f)(1) that were eligible for the unconstitutional legislative veto set forth in § 43(f)(3).
To be clear, then, the challenge in Alaska Airlines was to regulations, and the challenge was based on a legislative veto contained in a statutory provision governing how the challenged regulations themselves were to be promulgated. As the district court’s opinion in Alaska Airlines explained, “the statutory language directly links the admittedly unconstitutional provision [i.e., the legislative veto] with the specific grant of rulemaking authority under attack.”
Properly understood, Alaska Airlines is far removed from what the States want to do in Florida v. HHS, which is to challenge the individual mandate on the basis of its alleged inseverability from entirely distinct statutory provisions–provisions that (i) are in other sections of the Affordable Care Act, and (ii) deal with different matters, such as Medicaid requirements.
The States’ argument is not only grounded on a misreading of Alaska Airlines, but also in tension with the Supreme Court’s decisions in Communist Party of United States v. Subversive Activities Control Board, 367 U.S. 1 (1961), and Electric Bond & Share Co. v. SEC, 303 U.S. 419 (1938). These were enforcement actions brought by the federal government against organizations that failed to register as required by statute. In both cases, the Supreme Court considered only whether the provisions that the federal government sought to apply in that case were inseverable from other parts of the challenged statutes. The Court refused to consider other provisions that the government did not seek to apply in those cases.
Coherence with justiciability doctrine more generally