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The Severability Doctrine—A Commentary by Abbe R. Gluck '00 and Michael J. Graetz

The following commentary was published in The New York Times on March 22, 2012.

The Severability Doctrine
By Abbe R. Gluck and Michael J. Graetz

The Obama administration has made a curious strategic choice in its defense of the constitutionality of the health care reform act. The central issue before the Supreme Court, which will begin hearing oral arguments on Monday, is whether the act’s requirement that everyone buy health insurance — the so-called individual mandate — exceeds Congress’s constitutional power.

The act’s other provisions regulating health insurance — like the requirement that health insurance companies take all applicants, regardless of pre-existing illnesses, and the prohibition against charging sicker patients higher rates — have not been challenged. And yet the administration is arguing that the individual mandate is not “severable” from these regulations; if the mandate falls, they must as well, and health insurance companies would once again be free to choose whom to cover.

But if the court were to strike down the individual mandate, it should stop there: that would be quite bold enough. The Supreme Court has long affirmed a “presumption in favor of severability,” meaning that when it rules that a statutory provision is unconstitutional, the decision should affect as little of the law as possible. As Chief Justice John G. Roberts Jr. said, while speaking for the court in 2010, making more extensive changes would constitute “editorial freedom” that “belongs to the legislature, not the judiciary.”

It is Congress, not the court, that has the constitutional power and responsibility to make difficult legislative policy decisions like these. By arguing against severability, the Obama administration — and the law’s opponents, who are making an even more radical claim — is urging the Supreme Court to abandon its tradition of judicial restraint, to ignore longstanding precedents and to undermine the separation of powers.

Perhaps it comes as no surprise that the opponents of the law, which they call “Obamacare,” agree with the administration on this crucial point. They have even urged the Supreme Court to strike down the entire statute, including the act’s many provisions that have nothing to do with health insurance coverage, like those relating to doctor training and the regulation of certain drugs. They would like nothing more than for the court to save Congress the trouble of having to muster the votes to try to repeal the law.

To this end, the law’s opponents have advanced several specious arguments. Because the act is so complex, they say, the court does not have the expertise to decide whether only one provision can be excised from it. In addition, because the statute was the product of hard-fought political compromise, every provision was necessary to secure a majority of votes, and the removal of any one would upset the delicate deal that was struck.

But complexity is a key reason for the severability doctrine in the first place: it is Congress that has the expertise and responsibility to decide what should be kept absent the individual mandate. And virtually every statute reflects a bundle of political deals. If either of these arguments is accepted, it would destroy the doctrine of severability entirely.

Both the Obama administration and the law’s opponents have one argument in common. They express concern about what might happen to health insurance markets if the mandate is severed from the statute but the requirements that insurance companies cover sick patients and don’t charge them higher rates remain. If healthy people do not have to buy insurance and insurance companies are forced to cover the sick, they warn, insurance would be far more expensive. No doubt rates would rise as a result. But the size of that increase — whether it would be 10 percent or 20 percent, as some claim — is unknown, and the Supreme Court is in no position to make that judgment on its own.

It’s not clear why the Obama administration has chosen this course. Perhaps it made a strategic choice to raise the stakes of striking down the mandate by asking the court to also invalidate the law’s more popular provisions. Or it may be concerned that, if the mandate alone is struck down, there would not be enough votes in Congress to pass new provisions to compensate the insurance industry for its loss. But as a legal matter, the court should reject the argument.

We believe that imposing the mandate was within Congress’s powers to regulate commerce and that the legislation should be upheld. But if the Supreme Court strikes the mandate down, the rest of the law should stand, and Congress should have to decide what happens next.

Why should an unelected court free the insurance industry from having to do its own political lobbying work in Congress? Why should the court choose whether or not to deny injured and sick Americans health insurance? These crucial decisions must be left to our elected officials, who — unlike the Supreme Court — can then be held accountable for them by the voting public.

Abbe R. Gluck and Michael J. Graetz are professors at Columbia Law School.