The recent revelations about the process of writing the opinions in NFIB v. Sebelius explain much about some otherwise puzzling aspects of the opinions. Many have noted, for example, that the Joint Dissent by Justices Scalia, Kennedy, Thomas, and Alito reads like a patchwork. The switch-induced time pressure under which these Justices jointly produced the opinion may have exacerbated the normal difficulties of assembling all the pieces into a unified whole. And the process may have allowed in arguments whose provenance may have been unknown to all of the authoring Justices.
Something like that may have happened with respect to the Joint Dissent’s reasoning about the alleged inseverability of § 5000A and the Medicaid expansion from the rest of the Act. The Joint Dissent’s analysis relied on Christmas tree imagery to argue for inseverability:
The Court has not previously had occasion to consider severability in the context of an omnibus enactment like the ACA, which includes not only many provisions that are ancillary to its central provisions but also many that are entirely unrelated—hitched on because it was a quick way to get them passed despite opposition, or because their proponents could exact their enactment as the quid pro quo for their needed support. When we are confronted with such a so-called “Christmas tree,” a law to which many nongermane ornaments have been attached, we think the proper rule must be that when the tree no longer exists the ornaments are superfluous. We have no reliable basis for knowing which pieces of the Act would have passed on their own. It is certain that many of them would not have, and it is not a proper function of this Court to guess which.
NFIB v. Sebelius, Scalia, Kennedy, Thomas, & Alito, JJ., dissenting.
Where did the Christmas tree imagery come from? Throughout the litigation, there have been references to the PPACA as a Christmas tree. The bill passed the Senate on Christmas Eve, 2009, and it was criticized for being loaded down with “ornaments” to garner different legislators’ votes. But the insertion of the Christmas tree into severability analysis appears to derive from a January 31, 2012 Politico op-ed authored by Senator Mitch McConnell and Carrie Severino. The op-ed states:
The new health law is what we call a “Christmas tree” bill, decorated with countless provisions before it is passed. For example, the “Louisiana Purchase,” which guaranteed hundreds of millions of dollars in special payments to that state’s Medicaid programs. Or the “Cornhusker Kickback,” which, as originally drafted, would have given special treatment to Nebraska to sway a fence-sitting senator. Those provisions include everything from taxes on tanning salons to slush funds for bike paths as ornaments.
The question that will be facing the court is: What happens to the ornaments if the tree falls?
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All the parties — including the Obama administration — agree that the new insurance regulations are so dependent on the mandate they couldn’t function without it. If the trunk of a tree is severed, then the branches fall with it.
The administration nonetheless now argues that the tree’s “ornaments” somehow remain suspended in midair after the tree is gone.
Senator McConnell was the lead signatory on an amicus brief regarding severability that included Ms. Severino as counsel. But that brief did not mention a Christmas tree. Nor, as far as I can tell, did any of the other briefs in NFIB v. Sebelius filed in support of total inseverability.
It may be that whichever Justice authored this portion of the Joint Dissent came up with the Christmas tree image on his own. Or there may be some other source in the litigation that it came from. But it would be interesting if its usage derived in some way from the McConnell/Severino op-ed. For if that’s where it came from, and if all the authoring Justices knew that, it would be surprising that it stayed in the opinion. There are many other ways that they could have made the same point.
Suppose that the opinion had garnered just one more vote. And suppose that the instrument of destruction for all the provisions whose constitutionality has not been questioned had been imagery supplied by the Senate Minority Leader and the Chief Counsel and Policy Director of the Judicial Crisis Network–imagery supplied not in a brief, but rather in an Internet-only op-ed aimed at D.C.’s political and legal elites, imagery that picks up on a talking point tied to the political maneuvering that led to the Act’s Senate passage on Christmas Eve. It’s not hard to predict what sorts of criticisms would have rained down on this part of the opinion.
It very well may be that the imagery did not derive directly from the McConnell/Severino op-ed. Another possibility is that the Christmas tree imagery was just “in the air” in D.C. over the past couple of years. There was no particular source for its usage in the Joint Dissent, but rather it was just part of the available imagery given the season of judicial review of the the PPACA. Perhaps the composing Justice just adopted what was ready at hand. If that’s what happened, the close connection with the McConnell/Severino op-ed suggests a reason for circumspection in one’s choice of imagery. For with respect to the PPACA, the Christmas tree imagery had a political tint given the timing and circumstances of its passage in the Senate on Christmas Eve 2009. That coloring suggests a reason to reach out for some other imagery even though legislatures regularly pass so-called Christmas tree bills, bills which may be appropriately so called even when they are not passed around Christmas time.