Severability…What Severability?

For months we heard that health reform could collapse in one piece if the individual mandate was found to be unconstitutional as Congress—by accident or intent—did not include a severability clause in the final version of the Affordable Care Act (ACA).

So what happened? Why isn’t anyone focused on severability now?

Well… as you now know, the individual mandate was upheld as a tax rather than under the Commerce Clause so severability became irrelevant for the mandate. Where severability could have been necessary is in the courts ruling of the Medicaid expansion.  However, Chief Justice Roberts officially took the issue out of play in the Majority Opinion stating that due to the severability clause in the underlying Medicaid law rendered the issue null and void.

That fully remedies the constitutional violation we have identified. The chapter of the United States Code that contains §1396c includes a severability clause confirming that we need go no further. That clause specifies that “[i]f any provision of this chapter, or the application thereof to any person or circumstance, is held invalid, the remainder of the chapter, and the application of such provision to other persons or circumstances shall not be affected thereby.”§1303.

Of course, this did not stop Justices Scalia, Kennedy, Thomas, and Alito from elaborating their own view in the Dissent that the law did not include a severability clause and therefore absolutely should fall as one piece. Not only did they discount the Majority’s rationale regarding the Medicaid statute, they took one step further in a separate “Severability” section of the Dissent making it very clear that if they had been in the majority and ruled that the individual mandate and/or Medicaid provisions should fall that the entire law would come down.

So, the bottom line is that while the severability issue was essentially moot in the courts decision, it could have been a game changer had Roberts sided with the minority and the court ruled 5-4 against the mandate.  Given the minority opinion on severability, there is little doubt the entire law would have been thrown out completely.