American Enterprise Institute Sense and severability: If one part of the Affordable Care Act is ruled unconstitutional, what is the proper remedy or resolution? Introduction: Thomas P. Miller, AEI Panel I: In theory: Making sense of severability Panelists: John Harrison, University of Virginia School of Law David Gans, Constitutional Accountability Center Moderator: Thomas P. Miller, AEI Panel II: As applied: Texas v. United States Panelists: Josh Blackman, South Texas College of Law Houston Jim Blumstein, Vanderbilt Law School Ted Frank, Hamilton Lincoln Law Institute Ilya Somin, George Mason University Moderator: Thomas P. Miller, AEI 1:00–4:00 p.m. Friday, February 15, 2019 Event Page: http://www.aei.org/events/sense-and-severability-if-one-part-of- the-affordable-care-act-is-ruled-unconstitutional-what-is-the-proper-remedy-or- resolution/ Thomas P. Miller: Good afternoon. Welcome to the American Enterprise Institute. I’m Tom Miller, chief entertainment critic for health policy, which rarely fails either to amuse or appall us. Today’s conference is cosponsored by our silent partners at the Federalist Society, whose secretary may disavow all knowledge if this tape is captured. Our Mission Impossible today is to make a little more sense out of the law of severability, which tends to pop up from time to time when Congress makes a mistake in the laws it writes and gets flagged by the courts for a violation. Our first panel will take a deeper dive into where we’ve been, where we are, and where we could or should go in the future in dealing with federal laws with constitutional or other legal problems. Severability essentially comes down to how much of a law, if any parts of it, can survive and function if that happens. More on that in a moment. Some of our regular attendees and viewers may recall some earlier installments in this series of health law forums at AEI involving the ever-mutating Affordable Care Act, a renewable source of employment and commentary for lawyers and legal policy analysts. Last July, for example, we reviewed how the ACA bill that escaped Congress in March of 2010 launched a wave of litigation, regulatory revisions, and administrative workarounds. It was a little bit different from the simplified civics class process. And this cyclical process appears to be self-perpetuating, as the results of cases like NFIB v. Sebelius can produce a revised, if not completely rewritten, law that can launch a new round of lawsuits. So as I’ve said before and mentioned in congressional testimony last week and most likely will repeat again, welcome back to “Groundhog Day: ACA Litigation Version.” Or perhaps it’s just an updated spin-off of the long line of Dick Wolf TV shows, “ACA: SVU.” Making its debut in early 2018 was a case from Texas brought by 20 states, mostly Republican attorneys general, that claimed that after Congress had reduced the individual mandate tax to zero as of January 2019, the remaining individual mandate as a regulatory command had become unconstitutional. And here’s your severability answer: The rest of the ACA in its entirety should be ruled unenforceable as well. That’s sort of full-strength non-severability, Texas style. There are other positions in that case, ranging from the Trump administration’s lawyers settling for partial severability of several related regulatory provisions, to excising just the individual mandate, and, of course, to finding no constitutional legal problems at all. More on that case during our second panel on severability as applied in Texas v. United States. Because I still need some continuing legal education credits and this area of law remains far from well understood or applied consistently, we’ll start off with a longer-range look at severability. Maybe not as far back as the old-school biblical approach of splitting the difference or throwing out the baby with the bathwater. Oops, there was an objection on that artwork from the Department of Justice, but we’ve got it taken care of now. That fig leaf makes it a little bit better, if not so for Obamacare. One of the goals of our first panel is to provide a better understanding of how our three branches of government might interact better in this area within the separation of powers framework that can get blurred when it comes to severability. All this will be on the exam later, but here are some helpful course materials as part of your study guide. We begin on Panel I with a pair of thoughtful scholarly critiques of severability law, its permutations, and its evasions, but also its better accomplishments on occasion. Our panelists won’t exhaust every possible point of view, but they should get you to think more carefully about what courts should do in this area and what might happen in the future. I’ll introduce them separately. Our first speaker is John Harrison, who joined the University of Virginia School of Law faculty in 1993 as an associate professor of law after working in the Department of Justice for 10 years, including serving as the deputy assistant attorney general in the Office of Legal Counsel from 1990 to 1993. John clerked for Judge Robert Bork on the US Court of Appeals for the DC Circuit after graduating from UVA. He earned his law degree in 1980 at Yale, where he served as editor of the Yale Law Journal. Professor John Harrison. There or up here? Okay. John Harrison: Thank you, Tom. It’s good to be here. The great baseball theorist Bill James said, “Like Ronald Reagan, I believe in simplicity. I love complexity, but I believe in simplicity.” What I’m going to try to do is talk about a somewhat complex topic, severability and inseverability, by building it up from what I hope are the relatively simpler building blocks that give rise to the phenomena and raise the questions that we’ll be talking about. First thing I want to say is: What is the phenomenon that’s under discussion here? And the genuinely interesting phenomenon, the one that came up in NFIB against Sebelius, that has now come up in the latest iteration of this problem, is inseverability. It is inseverability that is the issue. Inseverability arises when there is some statutory rule, body of statutory rules, that by itself or by themselves are constitutional but nevertheless are found to be inoperative because something else, some application or some other statutory rule or set of statutory rules, is unconstitutional. How can that happen? The answer is that it can happen. Whether it happens is fundamentally determined by how Congress has legislated implicitly or explicitly about certain contingencies. But it can happen, and that’s why there is the topic that we’re talking about. Okay, the first thing I want to say by way of simple building block is how the Constitution operates. The constitution operates by creating a legal hierarchy in which it is at the top. And because it’s at the top and because of a few other basic assumptions of the American constitutional system, the Constitution provides criteria for the validity of nonconstitutional laws. It determines whether they are actually legally operative or not. That was the premise of the Constitution itself. Lots of famous Supreme Court cases are about it. The point I want to make is the Constitution operates on the content of the law. The next point is the Constitution operates on the content of the law by saying what the law can’t be. It says quite little about what the law is or has to be. Overwhelmingly — and here I’m going to be talking about Congress. Similar questions of course can come up with respect to state law, but what we’re mainly concerned with here is Congress. Overwhelmingly what the law is is up to Congress. What it’s not is to a certain extent determined by the Constitution, but, again, the Constitution — the constraints imposed by the Constitution are relatively generous. Notice that suggests — and I’m going to elaborate on this in a couple of moments — that suggests that because Congress says what the law is and the Constitution says what it’s not, what Congress has said is going to be the decisive question when it comes to the kind of thing that comes up under the rubric of severability or inseverability. Okay? So that’s the first building block, the way the Constitution operates, constraining the sub-constitutional law, but by and large not dictating the sub-constitutional law. Next point: the levels at which the Constitution operates. The Constitution sometimes means that particular applications of a nonconstitutional rule, say a statutory rule, are impermissible. The law can’t be that in that particular circumstance. But that’s just about those circumstances. For example, the Fourth Amendment says, “No unreasonable searches and seizures.” If Congress authorizes a category of searches or seizures, say by federal law enforcement officers, and says, “All of these are authorized, and some of them are unreasonable,” well, the rule that says they’re authorized is overridden by the Constitution. They become unauthorized because they are unreasonable. People who engage in those searches can’t rely on the defense of federal privilege, for example. But all the other authorizations left intact as far as the Constitution is concerned because the Constitution operates at the level of particular applications. Sometimes, the Constitution operates at the level of the rule. And by saying that it operates at the level of the rule, I mean sometimes the Constitution means that a particular generalization that the legislators, say, Congress has used, is impermissible.