No severability clause in the health care bill?

November 10, 2010 4:19 PM

Did they really fail to include a severabillity clause in the health-care reform bill?

It's routine for Congress to include a severability clause in bills they pass, boilerplate which says that if any part of the bill is nullified by the courts, the rest of the bill continues to be in effect.

I've started seeing mention in various news articles in the last couple of days that the health care bill passed earlier this year didn't include one. What this apparently means is that if any part of the bill can be successfully challenged on constitutional grounds, then the entire bill would be nullified. Without a severability clause, the whole thing stands or falls together.

Does anyone know if it's true that there was no severability clause included in that bill?

posted by Chocolate Pickle to Law & Government (7 answers total)

I'm trying to find out, but in reading about this it sounds as if the no-severability thing (if true) doesn't necessarily lead to the conclusion the right-wingers are hoping for. McCain-Feingold also apparently lacked a severability clause but the Supremes didn't just invalidate the whole thing. (See here from redstate.com, not exactly a pro-Obama site...)
posted by gerryblog at 4:35 PM on November 10, 2010

Best answer: It is true that there is no severability clause, but that doesn't meant that its provisions are not severable.

The Supreme Court recently considered part of Sarbanes-Oxley in Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. ___ (2010). Sarbanes-Oxley also lacks a severability clause. In that decision, the Court reiterated

“Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the prob­lem,” severing any “problematic portions while leaving the remainder intact.” Ayotte v. Planned Parenthood of Northern New Eng., 546 U. S. 320, 328–329 (2006). Be­cause “[t]he unconstitutionality of a part of an Act does not necessarily defeat or affect the validity of its remaining provisions,” Champlin Refining Co. v. Corporation Comm’n of Okla., 286 U. S. 210, 234 (1932), the “normal rule” is “that partial, rather than facial, invalidation is the required course,” Brockett v. Spokane Arcades, Inc., 472 U. S. 491, 504 (1985).

...

The Sarbanes-Oxley Act remains “‘fully operative as a law’” with these tenure restrictions excised. New York, 505 U. S., at 186 (quoting Alaska Airlines, Inc. v. Brock, 480 U. S. 678, 684 (1987)). We therefore must sustain its remaining provisions “[u]nless it is evident that the Legis­lature would not have enacted those provisions . . . inde­pendently of that which is [invalid].” Ibid. (internal quo­tation marks omitted). Though this inquiry can some­ times be “elusive,” Chadha, 462 U. S., at 932, the answer here seems clear: The remaining provisions are not “inca­pable of functioning independently,” Alaska Airlines, 480 U. S., at 684, and nothing in the statute’s text or historical context makes it “evident” that Congress, faced with the limitations imposed by the Constitution, would have pre­ferred no Board at all to a Board whose members are removable at will. Ibid.; see also Ayotte, supra, at 330.

Given the far-ranging and multi-faceted nature of the PPACA, I don't think any one provision is so essential that the Act would not remain fully operative or that the other provisions are incapable of functioning independently.

Example: knock out the individual mandate and you still have all the limitations on individual limits, the extension of eligibility of children to remain on their parents' policies, etc.
posted by jedicus at 4:39 PM on November 10, 2010 [3 favorites]

The problem would be that if the individual mandate goes but things like the preexisting condition exclusion ban stay you've basically destroyed the private insurance industry in the U.S. Wouldn't a right-leaning Supreme Court want to prevent this result?
posted by gerryblog at 4:44 PM on November 10, 2010

Severability clauses are important in contracts as a means of preserving agreements when part of them is struck down. Otherwise, there'd be an ambiguous situation where an agreement is modified by the courts without the parties mutual agreement. This is highly disfavored--though not unheard of--in contract law, and severability clauses enable the rest of the contract to survive by mutual agreement.

Legislation does not need this sort of protection, and courts are under no obligation to deal with bills as organic wholes, though they certainly can choose to do so. To the extent that there is a doctrine of statutory interpretation that says that you have to treat statutes as organic wholes, it isn't nearly as well established as the one for contracts.
posted by valkyryn at 5:01 PM on November 10, 2010 [1 favorite]

You may be interested in reading the actual text of the law, especially Section 1501 here. In anticipation of lawsuits they directly address the issues of the interstate commerce clause, their reasons for invoking it and citing Supreme Court precedent to preempt legal challenges. It is a thing of beauty. I doubt legal challenges to the insurance mandate are going very far.
posted by JackFlash at 8:49 PM on November 10, 2010

The gop is more or less fucked on this bill. Valkyrn is right. Although you do see severability clauses in legislation, they aren't as necessary as they are in contracts, where they are critical.
posted by Ironmouth at 11:02 PM on November 10, 2010

Valkyryn and Ironmouth, I think you're talking about a slightly different concept of severability as far as contract law goes than what Chocolate Pickle is asking. Severing is pretty normal for a court to undertake if you're talking about just excising the illegal parts (depending, of course, on how essential the provision is to the agreement). It's only fair, and it's entirely consistent with the policy that courts generally want to keep contracts enforceable. What's "highly disfavored" is courts' rewriting provisions to make them legal (though some states have more liberal blue pencil doctrines than others).

That said, there's a law review article called "Severability in Statutes and Contracts", 30 Ga. L. Rev. 41 (1995). I haven't read it, but it appears to say that courts generally want to approach severability of statutes the same way Dasein describes.
posted by odin53 at 2:20 PM on November 11, 2010