Obamacare Nonseverability Ruling Exposes Uncertainty in our Conception of Law

In the wake of a Supreme Court ruling in a Michigan land dispute earlier this year, I explained in a column for this site that the non-ideological divisions between the justices on display in the case reflected disagreement on a deep question about the very nature of law: How general must a legislative command be to count as a law? I asked: “How many cases must a law target to count as general? Two? Three? Ten? What if a law targets only one case, but that case is a class action involving many class members?” Despite the fundamentality of these questions, opinions by US courts provide little guidance.A recent high-profile case reveals yet more uncertainty about the very nature of law in the US. The ruling by a federal district judge in Texas striking down the entirety of the Affordable Care Act (ACA) rests on a highly unorthodox view of “severability”—a doctrine that aims to answer the following question: when a court finds that some legal provision violates the Constitution, to what extent does its unconstitutionality infect otherwise valid portions of the law? Although Judge O’Connor’s reasoning will likely be reversed on appeal, severability doctrine itself is mysterious, because we have no firm agreement about what exactly it is that our courts do when they declare laws unconstitutional.The Latest Obamacare RulingIn 2012, in NFIB v. Sebelius, the Supreme Court rejected the claim that Congress lacked the power to impose an individual mandate to purchase health insurance. Chief Justice Roberts and the Court’s four Democratic appointees concluded that the mandate fell within the power of Congress to tax, because the mandate was enforced by a tax. People had the option of paying the tax or purchasing health insurance. As part of a package of changes to federal tax laws enacted late last year, Congress reset to $0 the tax owed for failure to obtain mandated insurance. Thus, Judge O’Connor concluded, the mandate could no longer be seen as an exercise of the taxing power and is now unconstitutional.That reasoning is highly dubious in its own right. As Professor Martin Lederman explained, a much more straightforward understanding of Congress’s action in late 2017 is that it eliminated the mandate, not rendered it unconstitutional.Judge O’Connor’s contrary conclusion rests on the fact that Congress only zeroed out the penalty but left the obligation on the books. He says that some people will feel compelled to comply with the law, even if they could avoid compliance without risking any financial or other sort of penalty.Yet the number of such compulsive rule-followers is undoubtedly small enough to undercut the next, even more dubious aspect of Judge O’Connor’s ruling, regarding nonseverability. He says that the Congress that enacted the mandate in 2010 thought it was essential to the operation of the rest of the law, so without a mandate the whole law must fall.But whatever views about the relation of the mandate to the rest of the law that Congress may have had in 2010 were views about a mandate backed by a substantial sanction, not about a mandate backed by no sanction. Only one Congress could have had a view about the essentiality or non-essentiality of a mandate backed by no sanction: the 2017 Congress that zeroed out the tax for noncompliance with the mandate. And while many of the Republicans who voted for that change undoubtedly wished they had the votes to repeal the whole ACA, there is