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Federal Judge Voided Entire Affordable Care Act Because of Lack of Severability

You know by now that the Affordable Care Act has been found unconstitutional by a right-wing, Reagan-appointed judge who the plaintiffs forum-shopped to get as the magistrate for the case. What you may not understand is why the entire law was ruled null and void, if the ruling really only discussed the unconstitutionality of the individual mandate.

As District Judge Roger Vinson explains in his ruling, the bill did not pass with a standard severability clause, which typically bills like this would have. That allows a judge to split off unconstitutional pieces from a bill in litigation while leaving the rest of the bill, having passed Constitutional muster, intact. The severability clause is a feature of almost all major legislation in Congress, and it was in the ACA at one point, but through the different versions, somewhere down the line, it was excised. This gave Judge Vinson the power to decide on his own whether or not to sever the individual mandate from the bill. A previous district judge, Henry Hudson in Virginia, declined, ruling only that the mandate itself was unconstitutional. But Vinson went further, as he explains:

Because the individual mandate is unconstitutional and not severable, the entire Act must be declared void. This has been a difficult decision to reach, and I am aware that it will have indeterminable implications. At a time when there is virtually unanimous agreement that health care reform is needed in this country, it is hard to invalidate and strike down a statute titled “The Patient Protection and Affordable Care Act.” […]

In closing, I will simply observe, once again, that my conclusion in this case is based on an application of the Commerce Clause law as it exists pursuant to the Supreme Court’s current interpretation and definition. Only the Supreme Court (or a Constitutional amendment) can expand that.

Vinson restates that over and over again in his decision, that he only looked at the case on the basis of the application of the Commerce Clause. Seeing that a dozen other federal judges have looked at exactly that same clause and found no reason to strike down ACA, Vinson seems to be protesting a bit too much about his lack of activism here. Because his interpretation at least has the potential of rewriting multiple statutes that implement safety net relief to the less fortunate.

But on the point that the individual mandate is not severable, that is completely due to a grievous error of Congress in drafting the final version of the law. With the proper clause, it seems like Vinson would have just severed the mandate and left things like Medicaid expansion and insurance regulations and community health center funding and all the rest intact. So if the Supreme Court upholds this ruling – and that’s not out of the realm of possibility – Democrats in Congress will have nobody to blame but themselves.

The case will go to the Supreme Court, so ultimately they will decide. Andrew Cohen has more on how that might play out.

…as Brian Beutler points out, Vinson did not enjoin the law, which means implementation will continue as scheduled. The Obama Administration will appeal, and this will almost certainly land in the lap of the Supreme Court.

…Vinson, by the way, was not bound because of the lack of a severability clause to throw out the entire bill. The Roberts Court just struck a single provision from the Sarbanes-Oxley law even though it lacked a severability clause. So he’s not being entirely honest here, either.

David Dayen

David Dayen