This is the heart of the severability question
argued before the Supreme Court this morning. If the individual mandate is deemed unconstitutional, how much of the rest of the ACA goes down with it?
JUSTICE SOTOMAYOR: I want a bottom line is why don't we let Congress fix it?
MR. CLEMENT: Well, let me answer the bottom line question, which is, no matter what you do in this case, at some point there's going to be -- if you strike down the mandate, there is going to be something for Congress to do. The question is really, what task do you want to give Congress. Do you want to give Congress the task of fixing the statute after something has been taken out, especially a provision at the heart, or do you want to give Congress the task of fixing health care?...
JUSTICE SCALIA: Well, there is such a thing as legislative inertia, isn't there?
MR. CLEMENT: That's exactly what I was going to say, Justice Scalia, which is, I think the question for this Court is, we all recognize there is legislative inertia. And then the question is: What is the best result in light of that reality?
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Unlike yesterday, there was real skepticism from across the justices as to the opponents' arguments in favor of an overall striking-down of the ACA, given both how many of its provisions are wholly anodyne and how difficult it might be for a Court to decide what is, and isn't, inextricably intertwined with the mandate. Moreover, the Court is acutely cognizant of what's realistic for Congress to do in the aftermath of a Court ruling:
MR. CLEMENT: At -- at a certain point, I just think that, you know, the better answer might be to say, we've struck the heart of this Act, let's just give Congress a clean slate. If it's so easy to have that other big volume get reenacted, they can do it in a couple of days; it won't be a big deal. If it's not, because it's very -
(Laughter.)
MR. CLEMENT: -- well, but -- I mean, you can laugh at me if you want, but the point is, I'd rather suspect that it won't be easy. Because I rather suspect that if you actually dug into that, there'd be something that was quite controversial in there and it couldn't be passed quickly -
CHIEF JUSTICE ROBERTS: But the -- the -
MR. CLEMENT: -- and that's our whole point.
CHIEF JUSTICE ROBERTS: -- the -- the reality of the passage -- I mean, this was a piece of legislation which, there was -- had to be a concerted effort to gather enough votes so that it could be passed. And I suspect with a lot of these miscellaneous provisions that Justice Breyer was talking about, that was the price of the vote.
Put in the Indian health care provision and I will vote for the other 2700 pages. Put in the black lung provision, and I'll go along with it. That's why all -- many of these provisions I think were put in, not because they were unobjectionable. So presumably what Congress would have done is they wouldn't have been able to put together, cobble together, the votes to get it through.
And the Court does not want this job itself:
JUSTICE SCALIA: Mr. Kneedler, what happened to the Eighth Amendment? You really want us to go through these 2,700 pages?
(Laughter.)
JUSTICE SCALIA: And do you really expect the Court to do that? Or do you expect us to -- to give this function to our law clerks?
Is this not totally unrealistic? That we are going to go through this enormous bill item by item and decide each one?...
JUSTICE KAGAN: I mean, we have never suggested that we were going to say, look, this legislation was a brokered compromise and we are going to try to figure out exactly what would have happened in the complex parliamentary shenanigans that go on across the street and figure out whether they would have made a difference.
Instead, we look at the text that's actually given us. For some people, we look only at the text. It should be easy for Justice Scalia's clerks.
(Laughter.)
MR. KNEEDLER: I -- I think -- I think that -
JUSTICE SCALIA: I don't care whether it's easy for my clerks. I care whether it's easy for me. (Laughter.)
The chief justice, and Justice Kennedy, probing Paul Clement on behalf of ACA opponents as to what Congress would have done without the "heart" of the ACA:
CHIEF JUSTICE ROBERTS: Well, but it would have -- it would have passed parts of the hollow shell. I mean, a lot of this is reauthorization of appropriations that have been reauthorized for the previous 5 or 10 years and it was just more convenient for Congress to throw it in in the middle of the 2700 pages than to do it separately. I mean, can you really suggest -- I mean, they've cited the Black Lung Benefits Act and those have nothing to do with any of the things we are talking about.
MR. CLEMENT: Well, Mr. Chief Justice, they tried to make them germane. But I'm not here to tell you that -- some of their -- surely there are provisions that are just looking for the next legislative vehicle that is going to make it across the finish line and somebody's going to attach it to anything that is moving. I mean, I'll admit that.
But the question is when everything else from the center of the Act is interconnected and has to go, if you follow me that far, then the question is would you keep this hollowed-out shell?
JUSTICE SOTOMAYOR: Well, but it's not -
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?
Scalia's arguing with two hands. On the one hand, he mocks the "kill the whole bill" approach:
JUSTICE SCALIA: All right. The consequence of your proposition, would Congress have enacted it without this provision, okay that's the consequence. That would mean that if we struck down nothing in this legislation but the -- what you call the corn husker kickback, okay, we find that to violate the constitutional proscription of venality, okay?
(Laughter.)
JUSTICE SCALIA: When we strike that down, it's clear that Congress would not have passed it without that. It was the means of getting the last necessary vote in the Senate. And you are telling us that the whole statute would fall because the corn husker kickback is bad. That can't be right.
But then later on, in questioning
amicus Barton Farr, appointed by the Court to argue a "nothing else must fall" position, Scalia says:
JUSTICE SCALIA: Mr. Farr, let's -- let's consider how -- how your approach, severing as little as possible there -- thereby increases the deference that we're showing to -- to Congress. It seems to me it puts Congress in -- in this position: This Act is still in full effect. There is going to be this deficit that used to be made up by the mandatory coverage provision. All that money has to come from somewhere.
You can't repeal the rest of the Act because you're not going to get 60 votes in the Senate to repeal the rest. It's not a matter of enacting a new act. You've got to get 60 votes to repeal it. So the rest of the Act is going to be the law.
So you're just put to the choice of I guess bankrupting insurance companies and the whole system comes tumbling down, or else enacting a Federal subsidy program to the insurance companies, which is what the insurance companies would like, I'm sure.
Do you really think that that is somehow showing deference to Congress and -- and respecting the democratic process?
It seems to me it's a gross distortion of it.
MR. FARR: Well, Your Honor, the -- the difficulty is that it seems to me the other possibility is for the Court to make choices, particularly based on what it expects the difficulties of Congress altering the legislation after a Court ruling would be.
I'm not aware of any severability decision that is -
JUSTICE SCALIA: No, I -- that wouldn't be my approach. My approach would say if you take the heart out of the statute, the statute's gone. That enables Congress to -- to do what it wants in -- in the usual fashion. And it doesn't inject us into the process of saying, "this is good, this is bad, this is good, this is bad."
It seems to me it reduces our options the most and increases Congress's the most.
The four moderate-liberals aren't going to strike the whole thing. As for the rest? I don't see a strong five votes for killing the whole bill, but have
no idea what the result would be, or why.
