Briefs on Severability Point to Mandate as Heart of the Law


By Hadley Heath

Friday I posted a link to the government's brief on the Minimum Coverage Provision issue.  

Today I wanted to highlight a couple of other briefs on the issue of severability:

And for additional reading, a couple amicus briefs:

Carrie Severino, who coauthored this last amicus brief from Senators, summed up the basic argument of the petitioners in a post on NRO's Bench Memos:


The Constitution envisions laws being written by Congress, not the courts. When courts encounter a law with an unconstitutional provision, their goal is to effect what Congress would have done if they had known that part of the law could not stand. Sometimes this is a relatively easy case, like when Congress includes a “severability clause” in the law explicitly requesting courts to sever unconstitutional provisions without affecting the rest of the law. 

But in this case Congress actually removed a severability clause that was in the original Senate bill before the final law was passed. Add that to the repeated statements by the law’s proponents that the individual mandate was the “heart” of the law and that its removal would “mortally wound” or even “kill” health-care reform, and it’s clear that Congress thought the survival of the whole law turned on the individual mandate.



The federal government is arguing that it would be enough to remove the major private insurance reforms along with the mandate, and leave the rest intact — including everything from the Medicaid reforms that are also part of the Supreme Court challenge to taxes on tanning salons and funding for abstinence education. But the prospect of bodiless Things wandering loose in the U.S. Code is not much more reassuring than a 2,400-page zombie assaulting our health-insurance system.



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