Together with a bipartisan group of law professors—Jonathan Adler, Abbe Gluck, Ilya Somin, and Kevin Walsh—I submitted an amicus brief today in the Texas litigation over the constitutionality of the Affordable Care Act. Joe Palmore at Morrison and Foerster graciously helped to pull the brief together; he did characteristically excellent work.
The amicus brief doesn’t take a position on the constitutionality of the penalty-free mandate. Instead, it argues that it’d be inappropriate to sever any part of the ACA if the mandate is constitutionally defective:
The cornerstone of severability doctrine is congressional intent. Under current Supreme Court doctrine, a court must offer its best guess on what Congress would have wanted for the rest of the statute if a single provision is rendered unenforceable. But this guessing-game inquiry does not come into play where, as here, Congress itself has essentially eliminated the provision in question and left the rest of a statute standing. In such cases, congressional intent is clear—it is embodied in the text and substance of the statutory amendment itself. Under these circumstances, a court’s substitution of its own judgment for that of Congress would be an unlawful usurpation of congressional power and violate basic black-letter principles of severability. Yet that is what the plaintiff States and the United States invite this Court to do.
As a group, we don’t all see eye to eye on questions pertaining to constitutional interpretation, statutory construction, or the Affordable Care Act. Members of the group were on both sides of NFIB v. Sebelius and King v. Burwell; indeed, many of us have publicly sparred with each other over the right outcome in those cases.
But we all agree on this: “The arguments of both the plaintiff States and the United States on the severability of the insurance mandate from the other provisions of the ACA are inconsistent with settled law.”
At a time when it’s hard to find bipartisan agreement on anything, I’d like to think that the amicus brief testifies to the outlandishness of the severability arguments in the Texas litigation. But you can be the judge of that. In the meantime, I’m just glad this group was able to come together.