Amy Coney Barrett and the Severability Principle

California v. Texas, a unique challenge to the Affordable Care Act (ACA), will be heard on November 10, 2020, by a Supreme Court which by then will include recently-appointed Justice Amy Coney Barrett. During her week of hearings and independent meetings in the Senate, Democratic Senators made clear that the threat she posed to the ACA was grave enough to oppose her confirmation, let alone their questions of the legitimacy of the nomination so close to a general election. Democrats focused closely on the California v. Texas case, where the threat to the 2010 health law might actualize. Judge Barrett, however, has alluded to an important stance on the principle of severability, which may save the ACA in the November case.

Judge Barrett stated in her testimony that the severability option for a court holding could be described as a tool for the Judicial Branch to assist the Legislative; even if a statute’s provision were to be ruled unconstitutional, it could reasonably be severed from the remainder of the statute if not vital or salient to the overall law (and its execution). In this way, the Supreme Court could enforce Constitutional law in a more surgical manner, preserving most of the legislation crafted by another branch of government — “the Court and Congress working hand in hand,” in Judge Barrett’s own words. As long as the remaining law effectuates the intent of the Congress that passed it, the law as a whole could still stand.

“Severability is like a Jenga game … can you pull one [provision] out while it all stands?”

California v. Texas is a challenge to the ACA’s minimum essential coverage provision, otherwise known as the individual mandate. The mandate provides for a financial penalty on Americans that do not maintain a minimum level of health insurance coverage, through either private or public options. However, as of the 2017 Tax Cuts and Jobs Act (TCJA), the individual mandate has been leveled down to zero dollars per year. The lawsuit, filed in February of 2018, litigates only this newly-flattened mandate, not whatever past penalties may have existed before 2017 or may have injured plaintiffs. So, in Judge Barrett’s own terms, a provision with no real effect (even if ruled unconstitutional) could be severed from the rest of the statute without obstructing Congress’ initial intent. In passing the TCJA and leveling the individual mandate, Congress has made clear its intentions for the law — the individual mandate is almost certainly not vital or salient for the execution of the ACA as a whole.

Judge Barrett has been precise in concealing any “forecast” or “clue” as to how she may rule as an Associate Justice on the Supreme Court; still, she does openly approve of the use of severability as a tool at the Court’s disposal. For this reason, the ACA may not be at tremendous risk on November 10; in fact, this narrow provision of the law which both Democrats and Republicans have sought to strike down in the past may simply be removed after years of controversy, possibly for the betterment of the law. And even if the mandate is deemed non-severable from the remainder of the law, the Court could pursue another path — only ruling the provisions of the law that injured plaintiffs as unenforceable (a broader but still recoverable setback for the ACA). While Judge Barrett has only revealed a position on the severability principle, there are several avenues for the ACA to survive this threat to its legality as it has done for more than a decade.

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