Health Care

Sense and severability: If one part of the Affordable Care Act is ruled unconstitutional, what is the proper remedy or resolution?

On December 14, a federal district court in Texas ruled that the current version of the Affordable Care Act’s (ACA) individual mandate was unconstitutional. Join AEI for two panel discussions on the often-overlooked law of severability and what might happen to the rest of the ACA if that finding holds up on appeal.


Friday, February 15, 2019
12:30 pm
AEI, Auditorium
1789 Massachusetts Avenue NW
Washington, DC 20036
American Enterprise Institute

Event description authored by host organization. Information here does not necessarily reflect the views of CAC and may not be up to date — please refer to RSVP link for the latest information.

Sense and severability: If one part of the Affordable Care Act is ruled unconstitutional, what is the proper remedy or resolution?

On December 14, a federal district court in Texas ruled that the current version of the Affordable Care Act’s (ACA) individual mandate was unconstitutional. Join AEI for two panel discussions on the often-overlooked law of severability and what might happen to the rest of the ACA if that finding holds up on appeal.

The first panel will discuss the current state of severability, how consistently it is applied, and whether there are possible alternatives that could improve it. The second panel will discuss how severability law should be applied properly as this case advances. If an appellate court upholds the district court decision on constitutional issues, it still must decide what to do next. The primary options including striking down only the individual mandate (full severability), severing other functionally linked ACA insurance regulation provisions (partial severability), and finding that the entire ACA cannot be sustained.


12:30 PM
Registration and lunch

1:00 PM
Thomas P. Miller, AEI

1:10 PM
Panel I: In theory: Making sense of severability

John Harrison, University of Virginia School of Law
David Gans, Constitutional Accountability Center

Thomas P. Miller, AEI

2:00 PM

2:15 PM

2:20 PM
Panel II: As applied: Texas v. United States

Josh Blackman, South Texas College of Law Houston
Jim Blumstein, Vanderbilt Law School
Ted Frank, Hamilton Lincoln Law Institute
Ilya Somin, George Mason University

Thomas P. Miller, AEI

3:45 PM

4:00 PM

Speaker Biographies

Josh Blackman is an associate professor of law at the South Texas College of Law in Houston who specializes in constitutional law, the United States Supreme Court, and the intersection of law and technology. He is the author of “Unraveled: Obamacare, Religious Liberty, and Executive Power” (Cambridge University Press, 2016) and “Unprecedented: The Constitutional Challenge to Obamacare” (PublicAffairs, 2013). Mr. Blackman was selected by Forbes Magazine for the “30 Under 30” in law and policy. He has twice testified before the House Judiciary Committee on the constitutionality of executive action on immigration and health care. He is an adjunct scholar at the Cato Institute, the founder and president of the Harlan Institute, and the founder of FantasySCOTUS, the internet’s premier Supreme Court fantasy league. He blogs at He is the author of over four dozen law review articles, and his commentary has appeared in The New York Times, The Wall Street Journal, The Washington Post, USA Today, Los Angeles Times, and other national publications.

Jim Blumstein is the University Professor of Constitutional Law and Health Law & Policy at Vanderbilt Law School. The director of Vanderbilt’s Health Policy Center, Mr. Blumstein has served as the principal investigator on numerous grants concerning managed care, hospital management, and medical malpractice. He was elected to the National Academy of Sciences’ Institute of Medicine, and he was awarded the Earl Sutherland Prize, which is Vanderbilt’s preeminent university-wide recognition for lifetime scholarly contributions, and the Hall-Hartman Teaching Award. In 2007, he received the prestigious McDonald-Merrill-Ketcham Memorial Lectureship and Award for Excellence in Law and Medicine from the University of Indiana. Mr. Blumstein has been the Olin Visiting Professor at the University of Pennsylvania Law School, an adjunct professor at Dartmouth Medical School, and a visiting professor at Duke Law School and Duke’s Institute of Policy Sciences and Public Affairs. He served as former Tennessee Gov. Phil Bredesen’s counsel on TennCare reform and has participated actively in a number of Supreme Court cases, arguing three. In 2014, Mr. Blumstein received a secondary appointment as a professor of management at the Owen Graduate School of Management. He joined Vanderbilt’s law faculty in 1970.

Ted Frank is the director of litigation and cofounder of the Hamilton Lincoln Law Institute, a public-interest law firm. He has argued in the Supreme Court and federal courts of appeals dozens of times, winning a number of landmark decisions on civil justice reform issues. Mr. Frank was formerly a legal scholar with the American Enterprise Institute and the Manhattan Institute. He graduated from the University of Chicago Law School.

David Gans is director of the Human Rights, Civil Rights, and Citizenship Program at the Constitutional Accountability Center (CAC). He is the coauthor of “Religious Liberties for Corporations? Hobby Lobby, the Affordable Care Act, and the Constitution” (Palgrave MacMillan, 2014) and the lead author of CAC’s Text and History Narrative Series. His academic writings have appeared in the Yale Law Journal, the Boston University Law Review, the Emory Law Journal, the George Washington Law Review, and the John Marshall Law Review. Mr. Gans has also written commentary for the Los Angeles Times, USA Today, The New Republic, and Slate, as well as numerous legal blogs. He joined CAC after serving as program director of Cardozo School of Law’s Floersheimer Center for Constitutional Democracy and as an attorney with the Brennan Center for Justice at New York University School of Law. Previously, Mr. Gans was an acting assistant professor at New York University School of Law and practiced law at Emery Cuti Brinckerhoff & Abady PC. He has also served as an attorney fellow for the Center for Reproductive Law and Policy and as a law clerk for the Hon. Rosemary Barkett on the US Court of Appeals for the 11th Circuit. Mr. Gans is a graduate of Yale Law School, where he served as an editor on the Yale Law Review. Before receiving his law degree, he worked as a paralegal for the American Civil Liberties Union, where he helped Kathryn Kolbert prepare the briefs and argument in Planned Parenthood v. Casey.

John Harrison joined the University of Virginia School of Law faculty in 1993 as an associate professor of law after a distinguished career with the US Department of Justice. His teaching subjects include constitutional history, federal courts, remedies, corporations, civil procedure, legislation, and property. In 2008 he was on leave to serve as counselor on international law in the Office of the Legal Adviser at the US Department of State. Mr. Harrison was an associate at Patton Boggs & Blow in Washington, DC, and clerked for Judge Robert Bork on the US Court of Appeals for the District of Columbia Circuit. He worked with the Department of Justice from 1983 to 1993, serving in numerous capacities, including deputy assistant attorney general in the Office of Legal Counsel (1990–93). A 1977 graduate of the University of Virginia, Mr. Harrison earned his law degree in 1980 at Yale, where he served as editor of the Yale Law Journal and editor and articles editor of the Yale Studies in World Public Order.

Thomas P. Miller is a resident fellow at AEI, where he studies health care policy, including health insurance and market-based alternatives to the Affordable Care Act. A former senior health economist for the Joint Economic Committee (JEC) in Congress, Mr. Miller was previously a trial attorney, journalist, and sports broadcaster. He is the coauthor of the bestseller “Why ObamaCare Is Wrong for America” (HarperCollins, 2011), the first in-depth examination of the impact of the new health care law. While at the JEC, he organized a number of hearings that focused on reforms in private health care markets, such as information transparency and consumer-driven health care. He has testified before Congress on issues such as the uninsured, health care costs, Medicare prescription drug benefits, health insurance tax credits, genetic information, Social Security, and federal reinsurance of catastrophic events. Mr. Miller has a B.A. in political science from New York University and a J.D. from Duke University School of Law.

Ilya Somin is professor of law at George Mason University. He is the author of “Democracy and Political Ignorance: Why Smaller Government Is Smarter” (Stanford University Press, 2016) and “The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain” (University of Chicago Press, 2015), coauthor of “A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case” (Palgrave Macmillan, 2013), and coeditor of “Eminent Domain: A Comparative Perspective” (Cambridge University Press, 2017). Mr. Somin’s work has appeared in numerous scholarly journals and popular press outlets, including the Yale Law Journal, Stanford Law Review, Northwestern University Law Review, The Washington Post, The Wall Street Journal, and Los Angeles Times. He has testified before the US Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights and at the United States Senate Judiciary Committee confirmation hearings for Supreme Court Justice Sonia Sotomayor. Mr. Somin writes regularly for the Volokh Conspiracy law and politics blog, now affiliated with Reason magazine (previously affiliated with The Washington Post). From 2006 to 2013, he served as coeditor of the Supreme Court Economic Review. He has served as a visiting professor at the University of Pennsylvania Law School; University of Hamburg, Germany; the University of Torcuato Di Tella in Buenos Aires, Argentina; and Zhengzhou University in China. He was the John M. Olin Fellow in Law at Northwestern University Law School in 2002–03. In 2001–02, he clerked for the Hon. Judge Jerry E. Smith of the US Court of Appeals for the Fifth Circuit. Mr. Somin earned a B.A., summa cum laude, at Amherst College; an M.A. in political science from Harvard University; and a J.D. from Yale Law School.

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