Quick Takes on Severability From Inside the Courtroom

Posted: Mar 28, 2012 12:11 PM

On day three of the Obamacare hearings, the Supreme Court took on the question of severability. Can the individual mandate be struck down by itself, or must the whole law come with it?

The Justices are torn on severability – do they have the power to strike down pieces of the law, just because they may cause financial chaos? Is their job only to get rid of the unconstitutional part of the law and leave Congress to fix the rest?

They don’t seem keen on knocking it all down, although Justice Kennedy did question whether it’s more of an abuse of power to let some of the law stand that might have such detrimental financial consequences. In other words, he asked, is taking the middle ground, and picking out pieces of the law on their factual consequences too much power for the Court to assume?
Justice Kagan kept using the phrase, “Isn’t half a loaf better than no loaf at all,” suggesting that she might be willing to side with the federal government.
There is also a battle over congressional intent, but Chief Justice Roberts seemed especially skeptical of the idea that the Justices had the power to “carry out” congressional intent. Rather, the Court’s job is to allow Congress to retain as much power as possible, without letting them abuse it. The mandate, then, may be abuse, but who can say that the Court is right to decide what Congress would want? That is the job of Congress, after all. If they don’t like the guaranteed issue and community rating provisions, shouldn’t the Court let them repeal them?
On the other hand, some of them, particularly Justices Kennedy and Kagan, seem concerned with the financial reality of letting everything else stand. Perhaps, for them, the facts of the case are inescapable.
All in all, the Court is as much deciding the extent of its own power to shape policy as it is deciding how much of this law may stay.