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March 29, 2012

Don't severability difficulties suggest the ACA individual mandate is constitutional?

As the title suggests, I am going off-topic in this post because I am puzzled after reading Dahlia Lithwick's discussion here at Slate concerning the final day of the SCOTUS health care reform litigation.  (Arguably, I am not straying too far off-topic given not only the discussion of the Booker remedy in the argument, but also Justice Scalia's joking suggestion it would violate the constitutional ban on cruel and unusual punishment to force the Justices to read all of ACA.)  Specifically, if the ACA challengers assert and many Justices believe that none of the indisputably constitutional parts of ACA can stand without the individual mandate, doesn't that notion itself indicate that the mandate has to be a "necessary and proper" adjunct to how Congress has through ACA sought to regulate commerce in health care and insurance?

I raise this point because my understanding of the Raich decision, and especially Justice Scalia's Raich concurrence, was that it was "necessary and proper" for Congress to prohibit private growing and possession of a plant on private property because doing so was a permissible adjunct to how Congress sought to regulate (i.e., prohibit) any and all commerce in that plant.  In other words, I read Raich to mean that, absent some other express constitutional prohibition on state action, Congress can tell people what they can and cannot do (even concerning noneconomic private actions) if doing so is essential to its legitimate regulatory powers. 

Thus, when ACA challengers argue that all of ACA must fall because the individual mandate is the essential heart of the whole regime, I cannot help but thinking this very potent severability claim itself provides a basis for finding the individual mandate a constitutional exercise of Congressional power. 

Am I missing something here?

Recent related posts:

UPDATE:  A number of commentors sensibly suggest that the key issue here may be how to read and apply the term "proper" in the "Necessary and Proper" clause.  The ACA challengers who believe the whole law should come down may well be arguing — or at least may be very willing to concede — that the individual mandate is "necessary" to the operation of other (constitutiuonal) parts of ACA, but the mandate is still not constitutional because that mandate is not "proper" because it unduly infringes on individual liberty and/or improperly realigns the relationship between "the people" and the federal goverment, which is supposed to be a government of limited powers.

I find this textual hook for the argument appealing, but this approach to striking down the individual mandate would still seem to require repudiating the holding and logic of Raich.  Raich held that it was necessary and proper for Congress, in service to promoting a heathier population and/or to prevent a harmful market in pot, to make it a crime for a private person to grow and possess a plant on their own property.  That conclusion surely seem to suggest that it is also necessary and proper for Congress, in service to promoting a heathier population and/or to promote a helpful market in insurance, to penalize a private person if he decides he does not want to purchase health insurance. 

Readers should understand, as perhaps they already do, that I am setting out this argument because I am "rooting" for the individual mandate to be upheld.  I am genuinely unsure about what I hope SCOTUS will do in the ACA cases.  But I am sure that Raich still strikes me as a horrible ruling if one genuinely believes in the importance of a sacred sphere individual liberty and/or that the federal goverment must be a government of limited powers.  Thus my argument really is that, if (and when?) SCOTUS is going to strike down all or lots of ACA, logic and principle suggest it ought also reverse Raich along the way.

March 29, 2012 at 10:10 AM | Permalink


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I think what is missing is a clause like this one which I lifted from wikipedia: "If any part of this act shall be adjudged by any court of competent jurisdiction to be invalid, the remainder of this act shall be invalidated. Nothing herein shall be construed to affect the parties' right to appeal the matter". In the thousands of pages of of the PPACA, such a clause was omitted. It's not as if Congress does not write other laws with such a clause. It does so all the time. It chose not to do so in this case. Don't you think that if the mandate were truly necessary, much less proper, that Congress might have noted that in the legislation when they wrote the legislation?

Posted by: Jardinero1 | Mar 29, 2012 10:23:12 AM

Jardinero1: I doubt that Congress noted (or even thought) that it was "truly necessary, much less proper" to prevent people from growing their own pot for their own use in order to prevent commerce in marijuana. I do not think the SCOTUS jurisprudence in any way says Congress needs to make a clear statement in this respect.

Moreover, I think you may not understand the thrust of my question because I am thinking that the ACA opponents are, when saying the whole act must come down if the mandate falls, are largely saying that the mandate IS essential to the rest of ACA.

Posted by: Doug B. | Mar 29, 2012 10:51:15 AM

I agree with you. But this exchange from the argument tells you how Scalia will weasel his way around his concurrence in Raich.

JUSTICE SCALIA: Wait. That's -- it's both "Necessary and Proper." What you just said addresses what's necessary. Yes, has to be reasonably adapted. Necessary does not mean essential, just reasonably adapted. But in addition to being necessary, it has to be proper. And we've held in two cases that something that was reasonably adapted was not proper, because it violated the sovereignty of the States, which was implicit in the constitutional structure.

The argument here is that this also is -- may be necessary, but it's not proper, because it violates an equally evident principle in the Constitution, which is that the Federal Government is not supposed to be a government that has all powers; that it's supposed to be a government of limited powers. And that's what all this questioning has been about. What -- what is left? If the government can do this, what -- what else can it not do?

GENERAL VERRILLI: This does not violate the norm of proper as this Court articulated it in Printz or in New York because it does not interfere with the States as sovereigns. This is a regulation that -- this is a regulation -

JUSTICE SCALIA: No, that wasn't my point. That is not the only constitutional principle that exists.


JUSTICE SCALIA: An equally evident constitutional principle is the principle that the Federal Government is a government of enumerated powers and that the vast majority of powers remain in the States and do not belong to the Federal Government. Do you acknowledge that that's a principle?

GENERAL VERRILLI: Of course we do, Your Honor.

JUSTICE SCALIA: Okay. That's what we are talking about here.

Posted by: anon | Mar 29, 2012 10:55:43 AM

I was being flippant about necessary and proper but deadly serious about including a severability clause. Congress includes such verbage in much legislation but it was deliberately omitted. I believe the court should let stand whatever is left that is not struck down, if for no other reason than to send a message to Congress to be more careful in the future.

With regard to proper, the government and others are basically confusing expedient with proper. The necessary and proper clause is not the same thing as the necessary and expedient clause. While the mandate may be necessary for the act and the mandate may be the most expedient way to further the act, that does not mean the mandate is proper.

Posted by: Jardinero1 | Mar 29, 2012 12:14:38 PM

Prof. Berman: I like your argument. I see two possible ways of attacking it, but I'm not sure if they're any good. First, maybe there is a meaningful distinction between lack of severability and necessity. That is, the mandate may not be severable from the constitutional provisions as the ACA is currently structured, but maybe there is an equivalent, or similar enough, way for Congress to effectuate the substance of the constitutional provisions without the mandate. (This supposition may not withstand factual scrutiny.) And maybe that method is all Congress is entitled to enact. In other words, the proper referent for necessity is not the ACA as drafted, but rather something like what Congress is seeking to accomplish via the ACA. Second, necessity does not entail propriety. Even if (i) the constitutional provisions of the ACA are within the scope of Congress's power and (ii) the mandate is actually indispensable to effectuating these provisions, it would somehow nonetheless be "improper" for Congress to enact the mandate.

Posted by: Alan | Mar 29, 2012 12:56:34 PM

"absent some other express constitutional prohibition on state action"

Printz v. U.S. notes the principles of federalism makes commandeering state officials to carry out what is "necessary" to regulation of interstate commerce is not "proper," and this is not an "express" but an "implicit" principle. Some liberals in fact ridiculed Scalia there with a sarcastic nod to the penumbras and emanations of Griswold. But, McCulloch v. Maryland did say:

"Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and SPIRIT of the Constitution, are Constitutional."

Scalia's concurrence itself speaks of Printz and "principles" that might make something not "proper." Also, something that "obliterate the line between “what is truly national and what is truly local.” " ... of course, I don't see how this makes the PPACA a problem, but it isn't just "express" things.

Posted by: Joe | Mar 29, 2012 1:28:37 PM

I think the fundamental difference between the liberals and the conservatives (I mean that in a constitutional sense, not a political sense) is that what it means for Congress to be an institution of limited powers. I got into it with someone via Volokh as to whether the constitution should be seen as a whitelist or a blacklist (these are terms of art within computer security). I believe the constitution is a blacklist; that Congress can do what it wants expect for things which are specifically prohibited to it. I don't believe that the 10A stands in the way of that interpretation and I think the libertarians twist the 10A into something it doesn't actually say.

If someone believes that the Constitution is a whitelist the ACA must fail because the only real textual support for it lies in the preamble (which I noted before) and which to my surprise the SG pointed out in his closing arguments. As I have come to see it now that I have looked at it more closely, there is a real clash of world views in this case. I think anon is correct that Scalia can use some version of the "proper" argument to weasel out of it if he wants.

I think many of the nit picky debates are irrelevant because the judges are going to influenced by their fundamental world views and will find a way to affirm those world views in this case. IMO if there is a likely swing vote in this case it is not Kennedy but Roberts. I predict that Roberts will be in the majority, whichever way it goes.

Posted by: Daniel | Mar 29, 2012 1:36:41 PM

"specifically prohibited"

9A? As to "textual support," it's a regulation of interstate commerce etc. I don't see that problem there. Really, it's 1/6 of the national economy. It's a lot easier to see why it can regulate this matter than any number of things. It's easier than the mere possession of a small amount of drugs, e.g.

Posted by: Joe | Mar 29, 2012 1:53:41 PM

I think the S.G. referenced the blessings of liberty to remind people that use that against the ACA that it works both ways. Clement's answer, putting aside the merits, makes that clear.

Posted by: Joe | Mar 29, 2012 1:56:03 PM

Unfortunately for the Administration attorneys,

Democrats removed the severability portion from the legislation early in the process.

Therefore, the entire ACA will likely 'hang together'.

Posted by: Adamakis | Mar 29, 2012 2:15:40 PM

The recent assumption of the court has been a default in favor of severability of all but the unconstitutional provision (though that has been less than absolute).

The problem with severability is that it backdoors into the necessary and proper analysis.

Do health care and health insurance fit within the definition of interstate commerce? As health insurance will pay your bills if you get sick out of state, it would seem to fit that definition. Thus, the community rating and guaranteed coverage provisions would seem to qualify as a regulation on interstate commerce.

Then you get to the individual mandate. If the individual mandate is necessary (in Chief Justice Marshall's words, useful) to the community rating and guaranteed coverage, it would be constitutional under the necessary and proper clause (as it would not violate any constitutional bars). If it is not necessary, than that individual provision can be severed and everything else should be left intact.

Posted by: TMM | Mar 29, 2012 2:23:14 PM

WRT severability--the lack of severability was intention because without an individual mandate, the rest of the law wouldn't work.

For example, law says you can no longer deny coverage for pre-existing conditions. Lots of people decide to wait until they get seriously ill before buying health insurance, and cannot be denied based on a pre-existing condition. Without an individual mandate, there is nothing to stop this from happening or prevent skyrocketing premiums.

Individual mandate upheld 6-3, with Kennedy and Roberts in the majority. Just my prediction.

Posted by: Res ipsa | Mar 29, 2012 10:04:57 PM

I too didn't like Raich & its author was no fan of the law on policy grounds, but the USSC has not recognized "a sacred sphere individual liberty" to use drugs. They didn't even find it problematic to require public school children with no evidence of wrongdoing to need to give urine samples before they could belong to the chess club w/o a warrant. The author of Raich dissented there, though Scalia and Thomas did not. So, good luck with that. True consistency there will be narrow.

Posted by: Joe | Mar 30, 2012 12:37:53 AM

I respond to Prof Berman's update. I just don't see Raich as much of a hook on the proper issue. As far as I can tell, there was nothing in Raich about "promoting a heathier population". There was nothing in Raich about making citizens engage in activity to promote a regulatory scheme. Raich was about prohibiting participation in a market. I thought Raich said, basically, the government has an interest in promoting interstate commerce in pot, in furtherance of that interest it has chosen to ban the market. In recognition of that interest and the ban, the court finds it is both necessary and proper for the government to prohibit individuals from growing pot in their backyard, even if they never intend to sell it, not a far cry from Wickard. I don't agree with either, by the way.

The mandate to purchase insurance has nothing to do with "promoting a heathier population" either. The mandate exists to narrowly facilitate only two parts of the regulatory scheme established by PPACA, guaranteed issue and community rating. If Congress excised the guaranteed issue and community rating parts of the bill, then the mandate would be unnessary, and proper would not be an issue. The question the court has to answer about the mandate is whether the mandate is the only proper way to address the items of guaranteed issue and community rating or are there other proper means to address it. It's that narrow. Whatever decision they come up with will be narrowly defined along those lines.

Another difference between Raich and this case: There is no logical similarity between the necessity and propiety of prohibiting an activity and the necessity and propiety of requiring an activity. Prohibition from action and a requirement for action are two physically and logically different things and the standard of propiety will be different for each.

Posted by: Jardinero1 | Mar 30, 2012 10:51:22 AM

I reply to Res ipsa,

All the court has to do is say that Congress may use its virtually unlimited power to tax to fund any shortfalls which may arise as a result the snowball effects of not having a mandate. It's that simple. I predict 8-1 against the mandate with only Kagan dissenting since she can't, with a straight face, oppose the mandate.

Posted by: Jardinero1 | Mar 30, 2012 11:05:21 AM


Only proper means? Are you suggesting that strict scrutiny should apply to the necessary and proper clause?

While they didn't use the modern termininology back in the 1810s, my reading of McCulloch (and even some of the more recent decisions striking down legislation) is that the legal standard is more like rational basis plus, if not pure rational basis with perhaps some ability to set aside congressional fact-finding.

Posted by: TMM | Mar 30, 2012 2:09:40 PM

The mandate to purchase insurance has nothing to do with "promoting a heathier population"

First, I don't like this framing, since millions don't have to "purchase" anything. They can get government coverage. They can get covered on other plans w/o purchasing (it is a minimum "coverage" provision -- it is not like I'm trying to be picky; some seem to be more particular when the word not there is "tax"). etc.

Second, oh? The requirement is part of an overall scheme to promote a healthier population. It is in place to promote insurance coverage, those without insurance less likely to get health care, in the process being less healthy. How this has "nothing to do" with it (putting aside the tightness of the fit) is unclear to me.

Posted by: Joe | Mar 30, 2012 2:27:25 PM

"I predict 8-1 against the mandate"

Seriously? You think Breyer, e.g., will vote against the mandate? Did you hear or read his questions? Shoot, if it was a cell phone mandate, he would uphold it.

Posted by: Joe | Mar 30, 2012 2:29:56 PM

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