Why The Court Will Strike Down The Entire Affordable Care Act

Mainstream thinking on the Supreme Court has claimed that the Supreme Court will likely strike down part of the Affordable Care Act, but hold many parts of the law intact.  Few continue to publicly say that it is likely that the entire Act will remain in place.  Even fewer suggest that the Court will throw it all out.

A careful reading of the oral argument transcripts, however, delivers a different conclusion:  the most likely scenario is that the Court will throw the whole Act out.

In sum, the Court has two overriding limitations on its ability to keep portions of the ACA if it finds the individual mandate unconstitutional.

1.  It doesn’t have the authority from Congress to carve out only a section of the bill as unconstitutional (ie: no severability clause).

2.  It doesn’t have the subject matter expertise to decide what should stay and what should go if the mandate is thrown out.

The reasons the Court will throw out the entire Act, I believe, are laid out in the justices own questions.  Here are the two most critical lines of thinking underlying what will likely be a complete overturn of the law.

1.  Unlike other acts, there is allowance for the Court to sever out only one portion of this law.   Tomorrow, I will recount the full story of why a severability clause was left out of this bill, but the absence of such is of critical importance.  Severability is a base element of American and British law.  It is a clause included in an act that says, simply, if one portion of this law is to be found unconstitutional, then that will not apply to the remainder of the law.

When that clause does not exist, they the Court cannot carve out one such portion of the law.  Put simply, the Court cannot imagine for itself a power of severability.  To do so – to create a new power for itself – would be a new level of judicial activism well beyond the scope of health care reform, said Justice Kennedy.

JUSTICE KENNEDY: “When you say judicial restraint, you are echoing the earlier premise that it increases the judicial power if the judiciary strikes down other provisions of the Act. I suggest to you it might be quite the opposite.”

“We would be exercising the judicial power if one Act was — one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended. By reason of this Court, we would have a new regime that Congress did not provide for, did not consider. That, it seems to me, can be argued at least to be a more extreme exercise of judicial power than to strike -than striking the whole.”

2.  To strike down only a portion of the law would require the Court to have a level of subject matter expertise it does not feel it has.  All observers of the ACA will note how integrally woven elements of this bill are to one another.  Picking out those that must come out or which can stay if the Court’s intent is only to strike the individual mandate is a herculean task.

JUSTICE KENNEDY: But I’m still not sure, what is the test — and this was the colloquy you had with Justice Scalia with the corn husker hypothetical. So I need to know what standard you are asking me to apply. Is it whether as a rational matter separate parts could still function, or does it focus on the intent of the Congress?

If you — suppose you had party A wants proposal number 1, party B wants proposal number 2. Completely unrelated. One is airline rates, the other is milk regulation. And we — and they decide them together. The procedural rules are these have to be voted on as one. They are both passed. Then one is declared unconstitutional. The other can operate completely independently. Now, we know that Congress would not have intended to pass one without the other. Is that the end of it, or is there some different test? Because we don’t want to go into legislative history, that’s intrusive, so we ask whether or not an objective — as an objective rational matter one could function without — I still don’t know what the test is that we are supposed to apply. And this is the same question as Justice Scalia asked. Could you give me some help on that?

All this to say things don’t look good for the Court to keep the Act in place – with one very important and very possible exception laid out in March – which frankly rises in my esteem the more I think about it.