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Severability and Obamacare: A Conservative Temptation?

by Hadley Arkes
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It should have been plain to anyone who had sought to take in that vast, rambling apparatus known as the Patient Protection and Affordable Care Act, that the so-called "mandate" was at the heart of the machine. Remove it and the structure starts collapsing on itself. The requirements imposed on hospitals (not to turn away a patient), or insurance companies (not to turn away from a client because of "pre-existing conditions") guarantees an escalation of costs, while removing the very logic of "insurance." The argument before the Supreme Court this week seemed to show five justices strongly inclined to strike down the "mandate." And from the rough questioning at the Court on Wednesday, it looks as though the conviction that propels the move to strike down the mandate will carry through, in its momentum, to sweep away the whole Act—to decide that the mandate just cannot be severed from the rest of that package.

In the symmetry of these political divisions, there seems to be a comparable dynamic on the other side: the liberal justices who would uphold the Act seem to be seeking to salvage as much of the Act as they can, for they are driven to resist the impression taking hold, that the Act had been thoroughly, pervasively indefensible. And yet it is entirely conceivable that a bloc of five conservative judges could strike down the mandate, and then change places with their liberal colleagues: The conservatives could possibly see a conservative ground for denying "severability," while the liberals suddenly discover a serious interest in avoiding the strains that would inevitably come if the remaining parts of Obamacare had to be reassembled on a grand scale. In the temper of things that does not seem a likely outcome, but it could be plausible, and it may be worth putting the question of whether there may be an advantage for the conservative side for visiting upon the liberals the punishment of getting the result for which they have been so earnestly pleading.

The key to the problem may be found in that encounter that took place in the back and forth on Wednesday, between Michael Carvin and Justice Sotomayor:

JUSTICE SOTOMAYOR: So the — I — I want to understand the choices you're saying Congress has. Congress can tax everybody and set up a public health care system.

MR. CARVIN: Yes.

JUSTICE SOTOMAYOR: That would be okay?

MR. CARVIN: Yes. ... . I would accept that.

Part of the conservative argument has been that the individual mandate is the "low door under the wall": Congress legislates the requirements that escalate costs, and instead of taking public responsibility for these publicly-imposed costs, it tries to avoid the political problem—and the discipline of the Constitution. And it does that by the simple device of shifting the costs to private parties. Chief Justice Salmon Chase caught the center of this problem years ago in the Legal Tender Cases (1870): Under the "Takings Clause" in the Fifth Amendment, the Congress could not take private property for public use without "just compensation." Chase asked whether the constitutional provision could be circumvented simply by taking private property and then assigning it to other private persons for their benefit. As Chase put it:

[The provision on the taking of property] does not, in terms, prohibit legislation which appropriates the private property of one class of citizens to the use of another class; but if such property cannot be taken for the benefit of all, without compensation, it is difficult to understand how it can be so taken for the benefit of a part without violating the spirit of the prohibition.

If the City of Chicago took an apartment building under municipal ownership it would have to pay for the building—and raise the taxes to support the expense. But what if the City took the building and assigned the ownership to certain favored members of the Cook County Democratic Organization? Could the Constitution be circumvented so easily? And yet this is precisely the problem that arises when the government requires employers to pay for the medical care of their employees—or, more recently, requires insurance companies to cover, free of charge, the costs of contraception for the employees of Catholic institutions.

In the past, the constitutional alarms and whistles would have gone off when a legislative body found a stylish way of simply taking the assets of one private person or company and transferring them to others. It must be a measure of the erosion of constitutional sensibilities in our own time that hardly anyone—and certainly no one in the Obama Administration—flagged any constitutional problem when the Administration simply ordained that insurance companies will supply contraceptives to certain people without charge.

In the case of Obamacare the problem was "finessed" by the device of ordering the public to buy the products or services of these hospitals and insurance companies that would be put under crippling requirements. It was a problem created distinctively by the laws of Congress, and as Gregory Katsas, Michael Carvin and Paul Clement pointed out in their briefs and oral arguments, the whole monstrosity had to be slapped together the way it was by the election of Scott Brown in Massachusetts. Brown's election prevented the Democrats from having the 60 votes to overcome a filibuster. That removed the possibility of pushing the bill through the Senate without an array of payoffs, and it required simply enacting the House bill without trying to moderate its provisions in the Senate. The elaborate system of payoffs comes crashing down if the system of paying for the whole ensemble is removed. If the matter were thrown back to Congress, the Republican House would just as soon repeal the Act. But if the Democratic Senate would retrieve it, the Democrats would have to face the task of reneging on the payoffs to groups they had so carefully courted—and face the tougher question of whether they would meet the requirements of the Constitution: Would they take on the responsibility of paying for what they legislated—and explicitly raising the taxes that Obama insisted would not be raised? And that is when the conservatives might experience, for a moment at least, a certain lure to the notion of "severability."

If the Court strikes down Obamacare, the Administration is obviously geared to trumpet a Band of Five Republican judges, acting politically to deprive the people of a measure that promised to deliver healing care widely in the land. But the conservative majority could declare a posture of notable restraint here by striking down only one part of the Act, the mandate—the part that happens also to be the most unpopular part of the Act. All of the rest, with the generous provision for medical conditions, common and exotic, would still be there. Justice Scalia has made the point quite often that his colleagues should not make themselves into legislators by taking on the task of rewriting statutes. Scalia remarked on the impossibility of going through 2700 pages of the Act in order to see what portions might not survive the removal of the mandate as the instrument of funding. But exactly: that is not the function of the justices or their clerks. Justice Kennedy worried that the Court would be flexing vast judicial powers if it struck down the mandate and then created, by indirection, a large legal wreck, with companies moving to the edge of bankruptcy. And yet it could be argued that this was a wreckage produced by the Congress when it sought to build a gargantuan edifice on terms so disfigured that they were unconstitutional. The task of reconstructing the bill, facing what is unworkable in the scheme—and facing the political costs that are insufferable—that is a task that should fall to the people who had brought forth this production. Why should they be deprived of the experience of salvaging the wreck they had produced?

But as they faced the task of dealing with the wreck, one thing would be certain: that Obamacare—in its conception, its parts, its costs—could not be pushed aside during the political campaign. It would remain, inescapably, the central issue in the campaign, regardless of how artful and resolute the Republican candidate happens to be. The battle cry, simple and ringing, could be supplied by a line of Justice Scalia's in a case from 1987 on the Takings Clause. The Nollan family in Ventura County, California sought to build on their beachfront property. The California Coastal Commission sought to hold back the permission to build until the Nollans granted an "easement" for the public to pass through their property in the use of the beach. The Court struck down this brandishing of authority as a "taking" of property without compensation. As Justice Scalia said, in lines that should echo, California was certainly free to advance its "comprehensive program" for this public purpose, "but if it wants an easement across the Nollan's property, it must pay for it." In the same way, the Court could announce that if the Congress wanted to mandate a national program of health care, there may indeed be a way to do it, but it must find a path compatible with the Constitution—and face the constitutional discipline of justifying to the public the taxes that would be needed to pay for it.

Still, even the most appealing scheme promises to bring consequences unforeseen. The insurance companies, faced with the enormous costs, could be at the edge of bankruptcy. If the requirements are not repealed, the companies could ask for a bailout. But the Tea Party contingent in the House surely will not tolerate another bailout. Or their voters may not tolerate congressmen who are finally pressed to give in to the pressure when the Administration fills the air with dire forecasts of people massively losing their jobs. The tensions here could be reversed: they could be tensions that blow up the Republican coalition in the middle of the election. And given the way that liberal Administrations seem to play these matters, with the help of the media, we may expect to see the blame shifted from the Congress to the Court. We are certain to see Scalia and the conservatives tagged with blame for the wreckage that follows after the mandate is stricken and the rest of the enterprise begins painfully to implode.

The conservative justices may be inclined then, in prudence, to back into Burke's dictum that "refined policy is ever the parent of confusion": it may be better, in a clean stroke, to sweep away the entire statute. And yet there are real temptations here, marked by H.L. Mencken's line: that democracy is a system in which people should be given what they want—"good and hard." Is it severability that the liberals really crave? Some of us can be forgiven for being half-ready to give them what they want. And scaring them with the possibility of giving them what they want may be the surest way of delivering them from their appetite, to cling to the wreckage that remains.

Hadley Arkes is the Senior Fellow of the Claremont Institute's Center for Constitutional Jurisprudence