Chief Justice John G. Roberts Jr. Dec. 10, 2009. Photo: Diego M. Radzinschi/National Law Journal

For the second time in two weeks, the U.S. Supreme Court has made clear its views on how and when to sever unconstitutional provisions from a federal law, a crucial issue the justices will confront next term concerning the fate of the Affordable Care Act.

The Trump administration's U.S. Justice Department argues in the health care case California v. Texas that the entire health care insurance law should fall after Congress in 2017 eliminated the tax penalty for failure to purchase health insurance. The penalty provision could not be severed from the rest of the act because of its interrelationship to other critical features of the law, then-U.S. Solicitor General Noel Francisco said in a recent brief.

On Monday, Justice Brett Kavanaugh in the case Barr v. American Assn. of Political Consultants led a 7-2 majority in ruling that the unconstitutional exception for collection of government debts to the federal ban on cellphone robocalls could be severed from the Telephone Consumer Protection Act.

Just last week, in the case Seila Law v. CFPB, Chief Justice John Roberts Jr. wrote for the same 7-2 majority that the unconstitutional "for cause" removal protection for the director of the Consumer Financial Protection Bureau was severable from the Dodd-Frank act establishing the consumer bureau.

Both cases involved express severability clauses, but Roberts and Kavanaugh also addressed the "strong" presumption of severability in the absence of such clauses.

"Even in the absence of a severability clause, the 'traditional' rule is that 'the unconstitutional provision must be severed unless the statute created in its absence is legislation that Congress would not have enacted,'" Roberts wrote, citing prior precedents. The court has ruled in the past, he said, such provisions were severable because the remaining provisions in an act were capable of functioning independently.

"So too here," Roberts wrote. "The provisions of the Dodd-Frank Act bearing on the CFPB's structure and duties remain fully operative without the offending tenure restriction."

Where there is an express severability clause, "there is no need to wonder" what Congress would have wanted if any provision if the act is found unconstitutional, he added. In the CFPB case, Roberts wrote, the Dodd-Frank Act has such a clause.

"We think it clear that Congress would prefer that we use a scalpel rather than a bulldozer in curing the constitutional defect we identify today," Roberts concluded.

In the robocall decision, Kavanaugh undertook a lengthy analysis of severability in general. He noted that occasionally a party will ask the court to override a severability or nonseverability clause on the ground that the text doesn't reflect Congress's "actual intent" on the issue.

Supreme Court Justice Brett Kavanaugh. Photo: Diego M. Radzinschi / NLJ

"That kind of argument may have carried some force back when courts paid less attention to statutory text as the definitive expression of Congress's will," Kavanaugh wrote. "But courts today zero in on the precise statutory text and, as a result, courts hew closely to the text of severability or nonseverability clauses."

When a federal law has no clause, Kavanaugh added, there is a "strong" presumption of severability. As Roberts wrote in Seila Law, Kavanaugh said courts in that situation ask whether the remainder of the law is capable of functioning independently and so is "fully operative" as a law. "But it is fairly unusual for the remainder of a law not to be operative," he wrote.

The Affordable Care Act does not include a severability clause. The Supreme Court has said it will decide if the amended mandate provision is constitutional, and if it isn't, whether the provision is severable from the act.

In the ACA case, the U.S. House, which intervened to defend the law along with California and a coalition of Democratic led states, argues that when Congress stripped the mandate to buy insurance (Section 5000A  of any force, it deliberately left the remainder of the act "intact and fully operative."

By leaving the remainder of the act intact, the House contends, "that is dispositive evidence of Congress's intent to retain the rest of the Act even if Section 5000A were held to be without legal effect as well. And even if Congress's intent were not so clear, the outcome of the severability analysis would be the same because the rest of the ACA can—and does—function without Section 5000A in a manner consistent with Congress's intent."

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