When a federal judge in Florida invalidated the U.S. healthcare overhaul on Monday, he took the rare step of striking down an entire statute based on his finding that a single provision was unconstitutional. If history is any guide, though, such a sweeping decision may have a tough time surviving an appeal.
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U.S. Judge Roger Vinson of the Northern District of Florida ruled that Congress overstepped its authority under the Commerce Clause when it enacted a requirement that nearly all Americans purchase health insurance. Judge Vinson also ruled that because the insurance mandate was "indisputably necessary" to the purpose of the act, the entire law had to be struck down. The Obama administration says it plans to appeal, and with federal district courts now split two-to-two on whether the law is constitutional, the issue is all but certain to reach the U.S. Supreme Court.
Judge Vinson's decision turned on the legal principle that allows courts to throw out parts of legislation while keeping others. In contrast to Judge Vinson's ruling, in several recent major Supreme Court decisions, justices opted to strike down problematic provisions while leaving the larger statutory scheme intact, according to constitutional law experts.
Last year, for instance, the Supreme Court declined to throw out the Sarbanes-Oxley financial reform legislation, even though it found a provision -- relating to the independence of an accounting board created by the act -- to be unconstitutional. Writing for the majority, Chief Justice John Roberts expressed the court's preference for narrower rulings. "Generally speaking, when confronting a constitutional flaw in a statute," Roberts wrote, "we try to limit the solution to the problem, severing any 'problematic portions while leaving the remainder intact.'"To be sure, the Supreme Court has been known to strike down entire laws, but few have been as far-reaching as the massive healthcare overhaul. "It's unusual to find a law of this magnitude found to be inseverable," said Kevin Walsh, a former law clerk to Justice Antonin Scalia who teaches constitutional law at the University of Richmond School of Law. "You would have to go back to the New Deal to find a comparable case."
During the 1930s, in fact, the Supreme Court invalidated several laws passed as part of President Roosevelt's New Deal by finding certain provisions "non-severable." But in the last few decades, there has been a presumption that flawed provisions of laws can be severed from the broader law. In landmark decisions involving campaign finance and federal sentencing guidelines, for instance, the Supreme Court allowed statutes to survive after declaring portions of them unconstitutional.
PASSING THE TEST
To determine whether a provision can be severed from the rest of the law, courts typically apply a two-part test: Would the statute still function without the provision and, based on the legislative history, would Congress have wanted the law to survive if the provision were invalidated. The answers are not always obvious. "You try to recognize the hypothetical intent of Congress," said Mark Movsesian of St. John University School of Law. "But you never really know."The speculative nature of the so-called severability test makes some judges uneasy. In December, U.S. Judge Henry Hudson of the Eastern District of Virginia found the insurance mandate in the healthcare law to be unconstitutional, but he declined to throw out the rest of the law. "It would be virtually impossible within the present record to determine whether Congress would have passed this bill," Judge Hudson wrote. "Even then, the court's conclusion would be speculative at best."
For his part, Judge Vinson acknowledged that his ruling departed from the "normal rule" of not invalidating entire statutes. But he said the mandate's importance to the other goals of the legislation justified his ruling. As evidence, he cited the Obama administration's own motion to dismiss the suit, which conceded that the mandate is necessary to make other regulations in the act effective. "The Act, like a defectively designed watch, needs to be redesigned and reconstructed by the watchmaker," Judge Vinson wrote.
In addition to examining the structure of the statute, Judge Vinson also cited its legislative history. He noted, for example, that a previous version of the legislation included a clause that attempted to legally protect other aspects of the legislation if the mandate were to be deemed unconstitutional. That clause was later removed. Judge Vinson cited this as evidence that Congress "recognized the act could not operate as intended without the individual mandate."But several scholars said Judge Vinson's conclusions may not hold up on appeal. "The mandate was certainly going to help the goals of the law," said Michael Dorf, a professor at Cornell University law school. "But it wasn't so essential that we can assume Congress wanted the whole thing to come unglued if you take this piece out."