ISSUE BRIEF: To Save and Not to Destroy: Severability, Judicial Restraint, and the Affordable Care Act

When a statute is partially unconstitutional, courts must endeavor to save, not destroy, the rest of the law. This is the core command of severability doctrine, a firmly established tenet of judicial restraint. A court must save the valid parts of a statute unless the legislature would not have intended those parts to remain in effect absent the unconstitutional provisions.


Severability doctrine reflects the familiar idea that the judicial remedy should match the constitutional violation, so that perfectly valid legislative enactments are not struck down. This understanding of severability also reflects basic separation of powers principles that demand that courts respect the legislature’s handiwork. Thus, the doctrine says that a court’s duty is to save the valid parts of a statute except in the unusual case where the statute has been so compromised that the legislature would have preferred no statute at all to the parts that are left.

Modern severability doctrine’s contours have been powerfully shaped by a history of doctrinal abuse. During the Supreme Court’s Lochner era in the early twentieth century,7 a narrow majority of the Court combined severability doctrine with a cramped understanding of the power of government to regulate the economy to strike down numerous state and congressional regulatory efforts in their entirety. Conservative justices of the Lochner era argued that the comprehensive regulatory statutes pushed by President Franklin Delano Roosevelt and enacted by the New Deal Congress had to fall as a whole; the parts were designed to work together and hence, they argued, the unconstitutional provisions were too interconnected with the constitutional ones to be severed. Since then, the Court has repudiated this approach time and again, emphasizing that the guiding principle of severability doctrine is to save and not to destroy. The Court has insisted: “[W]henever an act of Congress contains unobjectionable provisions separable from those found to be unconstitutional, it is the duty of this court to so declare, and to maintain the act in so far as it is valid.”

The severability question in Texas v. United States should therefore be easy. Congress’s decision to leave the rest of the Act in place when it zeroed out the penalty for not complying with the individual mandate should answer the severability question. Specifically, Congress intended the ACA to remain in effect even without an enforceable individual mandate. This case is easier than most, because severability doctrine often requires courts to engage in counterfactual inquiries about what Congress would have done. Not so here. Texas is the rare case where Congress explicitly addressed the question and made its intent plain. Congress zeroed out the mandate and left the Act in place, disappointing members of Congress who had pushed for a repeal of the entire law. The court’s obligation is clear: to respect the congressional choice and save the ACA, not destroy it.

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