Instant Analysis: NFIB v. Sebellius (Severability)

March 28th, 2012

Transcript is here.


Sotomayor jumped on Clement right out of the gate, stressing that the Court is “not in the habit of doing the legislative findings.” Clement dodged her questions several times about letting the people solve this problem:

JUSTICE SOTOMAYOR: I want a bottom line is why don’t we let Congress fix it?
MR. CLEMENT: Well, let me answer the bottom line question, which is, no matter what you do in this case, at some point there’s going to be — if you strike down the mandate, there is going to be something for Congress to do. The question is really, what task do you want to give Congress. Do you want to give Congress the task of fixing the statute after something has been taken out, especially a provision at the heart, or do you want to give Congress the task of fixing health care? And I think it would be better in this situation

And Sotomayor asks about aggregating more power for the Court:

JUSTICE SOTOMAYOR: Are you suggesting that we should take on more power to the Court?
SOTOMAYOR: Because Congress would choose to take one path rather than another. That’s sort of taking onto the Court more power than one I think would want.

Scalia asks a question about whether we look to Congressional intent:

SCALIA: Mr. Clement, I want to ask you about that. Why — why do we look to the — are you sure we look to the intent of the Congress? I thought that, you know, sometimes Congress says that these provisions will — all the provisions of this Act will be severable. And we ignore that when the Act really won’t work. When the remaining provisions just won’t work. Now how can you square that reality with the proposition that what we’re looking for here is what would this Congress have wanted?
MR. CLEMENT: Well, two responses, Justice Scalia. We can look at this Court’s cases on severability, and they all formulate the task a little bit differently.
JUSTICE SCALIA: Yes, they sure do.
MR. CLEMENT: And every one of them talks about congressional intent. But here’s, here’s the other answer -JUSTICE
SCALIA: That’s true, but is it right?

Scalia goes into the manner in which it was passed:

JUSTICE SCALIA: All right. The consequence of your proposition, would Congress have enacted it without this provision, okay that’s the consequence. That would mean that if we struck down nothing in this legislation but the — what you call the corn husker kickback, okay, we find that to violate the constitutional proscription of venality, okay?

JUSTICE SCALIA: When we strike that down, it’s clear that Congress would not have passed it without that. It was the means of getting the last necessary vote in the Senate. And you are telling us that the whole statute would fall because the corn husker kickback is bad. That can’t be right.

Kagan breaks bread with Clement:

JUSTICE KAGAN: Although the exchanges function perfectly well in Utah where there is no mandate. They function differently, but they function. And the question is always, does Congress want half a loaf. Is half a loaf better than no loaf? And on something like the exchanges it seems to me a perfect example where half a loaf is better than no loaf. The exchanges will do something. They won’t do everything that Congress envisioned.

MR. CLEMENT: Well, Justice Kagan, I think there are situations where half a loaf is actually worse and I want to address that. But before I do it -broadly. But before I do that, if I could stick with just the exchanges.

Kagan looks to Booker!

JUSTICE KAGAN: Mr. Clement, you just said something which you say a lot in your brief. You say the question is the manner in which it would have operated. And I think that that’s not consistent with our cases. And I guess the best example would be Booker where we decided not to sever provisions, notwithstanding that the sentencing guidelines clearly operate in a different manner now than they did when Congress passed them. They operate as advisory rather than mandatory.
MR. CLEMENT: Well, but Justice Kagan, I mean I actually think Booker supports our point as well, because there are two aspects of the remedial holding of Booker. And the first part of it, which I think actually very much supports our point is where the majority rejects the approach of the dissent, which actually would have required nothing in the statute to have been struck, not a single word.

But nonetheless this Court said, well, if you do that then all of the sentencing is basically

going to be done by a combination of the juries and the prosecutors and the judges are going to be cut out. And the Court said the one thing we know is that’s not the manner in which Congress thought that this should operate.
Now later they make a different judgment about the — which particular provisions to cut out. But I do think Booker is consistent with this way of looking at it and certainly consistent with Brock, the opinion we rely on because there the Court only reached that part of the opinion after they already found that the must-hire provision operated functionally independent from the legislative detail, so

RBG takes the *conservative* approach:

So why should we say it’s a choice between a wrecking operation, which is what you are requesting, or a salvage job. And the more conservative approach would be salvage rather than throwing out everything.

Clement views PPACA without the mandate as just a “hollow shell.”

if you follow that through what you end up with at the end of that process is just sort of a hollow shell. And at that point I think there is a strong argument for not — I mean, you can’t possibly think that Congress would have passed that hollow shell without the heart of the Act.

AMK opens up:

KENNEDY: But I’m still not sure, what is the test — and this was the colloquy you had with Justice Scalia with the corn husker hypothetical. So I need to know what standard you are asking me to apply. Is it whether as a rational matter separate parts could still function, or does it focus on the intent of the Congress?
If you — suppose you had party A wants proposal number 1, party B wants proposal number 2. Completely unrelated. One is airline rates, the other is milk regulation. And we — and they decide them together. The procedural rules are these have to be voted on as one. They are both passed. Then one is declared unconstitutional. The other can operate completely independently. Now, we know that Congress would not have intended to pass one without the other. Is that the end of it, or is there some different test? Because we don’t want to go into legislative history, that’s intrusive, so we ask whether or not an objective — as an objective rational matter one could function without — I still don’t know what the test is that we are supposed to apply. And this is the same question as Justice Scalia asked. Could you give me some help on that?

Clement prefers an objective test based on text!

MR. CLEMENT: I’m — I’m a big believer in objective tests, Justice Kennedy. I would be perfectly happy with you to apply a more textually based objective approach. I think there are certain justices that are more inclined to take more of a peek at legislative history, and I think if you look at the legislative history of this it would only fortify the conclusion that you would reach from a very objective textual inquiry. But I am happy to focus the Court on the objective textual inquiry. . . .

MR. CLEMENT: Is whether the statute can operate in the manner that Congress — that Congress intended.

Sotomayor would turn severability doctrine into a simple test–if Congress says nothing, don’t sever:

SOTOMAYOR: So what is wrong with the presumption that our law says, which is we presume that Congress would want to sever? Wouldn’t that be the simplest, most objective test? Going past what Justice Scalia says we have done, okay, get rid of legislative intent altogether, which some of our colleagues in other contexts have promoted, and just say: Unless Congress tells us directly, it’s not severable, we shouldn’t sever. We should let them fix their problems.
You still haven’t asked — answered me why in a democracy structured like ours, where each branch does different things, why we should involve the Court in making the legislative judgment?

Clement’s answer, crushing:

MR. CLEMENT: Well, one thing that’s wrong with that, which is still at a smaller level, is that’s inconsistent with virtually every statement in every one of your severability opinions, which all talk about congressional intent.

Kagan tries to bail out Soto:

JUSTICE KAGAN: Well, it’s not inconsistent with our practice, right, Mr. Clement? I mean, you have to go back decades and decades and decades, and I’m not sure even then you could find a piece of legislation that we refused to sever for this reason.

MR. CLEMENT: I don’t think that’s right, Justice Kagan. I think there are more recent examples. A great example I think which sort of proves, and maybe is a segue to get to my broader point, is a case that involves a State statute, not a Federal statute, but I don’t think anything turns on that, is Randall against Sorrell, where this Court struck down various provisions of the Vermont campaign finance law.

And Clement calls out Buckley! The Court would have been better off striking down the entire act.

And if I could make the broader point, I mean, I think the reason it makes sense in the democracy with separation of powers to in some cases sever the whole thing is because sometimes a half a loaf is worse. And a great example, if I dare say so, is Buckley. In Buckley this Court looked at a statute that tried to, in a coherent way, strike down limits on contributions and closely related expenditures.

This Court struck down the ban on expenditures, left the contribution ban in place, and for 4 decades Congress has tried to fix what’s left of the statute, largely unsuccessfully, whereas it would have I think worked much better from a democratic and separation of powers standpoint if the Court would have said: Look, expenditures are — you can’t limit expenditures under the Constitution; the contribution provision is joined at the hip. Give Congress a chance to actually fix the problem.

Not even Breyer read the bill (you can hear him flipping through the 2700 pages of the bill)

BREYER: Could I ask you one question, which is a practical question. I take as a given your answer to Justice Kennedy, you are saying let’s look at it objectively and say what Congress has intended, okay? This is the mandate in the community, this is Titles I and II, the mandate, the community, pre-existing condition, okay? Here’s the rest of it, you know, and when I look through the rest of it, I have all kinds of stuff in there. And I haven’t read every word of that, I promise. As you pointed out, there is biosimilarity, there is breast feeding, there is promoting nurses and doctors to serve underserved areas,

there is the CLASS Act, etcetera.
What do you suggest we do? I mean, should we appoint a special master with an instruction? Should we go back to the district court? You haven’t argued most of these. As I hear you now, you’re pretty close to the SG. I mean, you’d like it all struck down, but we are supposed to apply the objective test. I don’t know if you differ very much.
So what do you propose that we do other than spend a year reading all this and have you argument all this? . . .

So that’s — do you know what you have there? A total off-the-cuff impression. So that’s why I am asking you, what should I do?

Then Clement starts talking about how many of Breyer’s provisions perhaps aren’t so uncontroversial:

MR. CLEMENT: At — at a certain point, I just think that, you know, the better answer might be to say, we’ve struck the heart of this Act, let’s just give Congress a clean slate. If it’s so easy to have that other big volume get reenacted, they can do it in a couple of days; it won’t be a big deal. If it’s not, because it’s very -(
MR. CLEMENT: — well, but — I mean, you can laugh at me if you want, but the point is, I’d rather suspect that it won’t be easy. Because I rather suspect that if you actually dug into that, there’d be something that was quite controversial in there and it couldn’t be passed quickly -CHIEF
JUSTICE ROBERTS: But the — the -MR.
CLEMENT: — and that’s our whole point.

And the Chief wades into some public choice shit.

CHIEF JUSTICE ROBERTS: — the — the reality of the passage — I mean, this was a piece of legislation which, there was — had to be a concerted effort to gather enough votes so that it could be passed. And I suspect with a lot of these miscellaneous provisions that Justice Breyer was talking about, that was the price of the vote.
Put in the Indian health care provision and I will vote for the other 2700 pages. Put in the black lung provision, and I’ll go along with it. That’s why all — many of these provisions I think were put in, not because they were unobjectionable. So presumably what Congress would have done is they wouldn’t have been able to put together, cobble together, the votes to get it through.


No Buckley redux!

 I think you do want to strike it all down to avoid a redux of Buckley.


Scalia talks more about the political process:

SCALIA: — don’t you think it’s unrealistic to say leave it to Congress, as though you are sending it back to Congress for Congress to consider it dispassionately on balance, should we have this provision or should we not have provision? That’s not what it’s going to be. It’s going to be, these provisions are in effect; even though you — a lot of you never wanted them to be in effect, and you only voted for them because you wanted to get the heart of the — the Act, which has now been cut out; but

nonetheless these provisions are the law, and you have to get the votes to overturn them. That’s an enormously different question from whether you get the votes initially to put them into the law.
What — there, there is no way that this Court’s decision is not going to distort the congressional process. Whether we strike it all down or leave some of it in place, the congressional process will never be the same. One way or another, Congress is going to have to reconsider this, and why isn’t it better to have them reconsider it — what — what should I say — in toto, rather than having some things already in the law which you have to eliminate before you can move on to consider everything on balance?

Scalia was getting really ornery.

JUSTICE SCALIA: Mr. Kneedler, what happened
to the Eighth Amendment? You really want us to go
through these 2,700 pages?
JUSTICE SCALIA: And do you really expect the Court to do that? Or do you expect us to — to give this function to our law clerks?
Is this not totally unrealistic? That we are going to go through this enormous bill item by item and decide each one?
SOTOMAYOR: I thought the answer was you don’t have to because -MR.

That would be making the Court into a “whip count!” Kagan needled Nino

MR. KNEEDLER: That is correct, and I’d also like to — going — I just want to finish the thought I had about this being a matter of statutory interpretation. The Court’s task, we submit, is not to look at the legislative process to see whether the bill would been — would have passed or not based on the political situation at the time, which would basically convert the Court into a function such as a whip count. That is not the Court’s

JUSTICE KAGAN: And Mr. Kneedler, that would be a revolution -MR.
JUSTICE KAGAN: — in our severability law, wouldn’t it?
MR. KNEEDLER: It would.
JUSTICE KAGAN: I mean, we have never suggested that we were going to say, look, this legislation was a brokered compromise and we are going to try to figure out exactly what would have happened in the complex parliamentary shenanigans that go on across the street and figure out whether they would have made a difference.
Instead, we look at the text that’s actually given us. For some people, we look only at the text. It should be easy for Justice Scalia’s clerks.
MR. KNEEDLER: I — I think — I think that -JUSTICE
SCALIA: I don’t care whether it’s easy for my clerks. I care whether it’s easy for me.

Scalia is like the grumpy old man.

AMK asks about imposing risk insurance companies! The pro-corporation Roberts Court!

JUSTICE KENNEDY: But I still don’t understand where you are with the answer to Justice Alito’s question.

Assume that there is a, a substantial
probability that the 350 billion plus 350 billion equals 7 is going to be cut in half if the individual mandate is — is stricken. Assume there is a significant possibility of that. Is it within the proper exercise of this Court’s function to impose that kind of risk? Can we say that the Congress would have intended that there be that kind of risk?
MR. KNEEDLER: Well, we don’t think it’s in the Court’s place to look at the, at the budgetary implications, and we also -JUSTICE
KENNEDY: But isn’t that — isn’t that the point then, why we should just assume that it is not severable?
JUSTICE KENNEDY: If we — if we lack the competence to even assess whether there is a risk, then isn’t this an awesome exercise of judicial power?
KENNEDY: To say we are doing something and we are not telling you what the consequences might be?

Yawn. I am on SCOTUS overload this week. I’ll blog as I listen if anything big comes up.

Kennedy again asks about expertise:

JUSTICE KENNEDY: But you are saying we have — we have the expertise to make the inquiry you want us to make, i.e., the guaranteed-issue, but not the expertise that Justice Alito’s question suggests we must make.
KENNEDY: I just don’t understand your position.


Oh the details here are so wonky.

Scalia is grumpy, and asks about a dictionary:

SCALIA: Is there any dictionary

that gives that -MR.
FARR: I’m sorry, Justice Scalia?
JUSTICE SCALIA: — that definition of “essential”? It’s very imaginative. Just give me one dictionary.
MR. FARR: Well, but I think my point, Justice Scalia, is that they are not using it in the true dictionary sense.
JUSTICE SCALIA: How do we know that? When people speak, I assume they are speaking English.

Clement on Rebuttal

More on Buckley!

And that takes me to my last point, which is simply this court in Buckley created a halfway house and it took Congress 40 years to try to deal with the situation, when contrary to any time of their intent, they had to try to figure out what are we going to do when we are stuck with this ban on contributions, but we can’t get at expenditures because the Court told us we couldn’t? And for 40 years they worked in that halfway house. Why make them do that in health care? The choice is to give Congress the task of fixing this statute, the residuum of this statute after some of it is struck down, or giving them the task of simply fixing the problem on a clean slate. I don’t think that is a close choice. If the individual mandate is unconstitutional, the rest of the Act should fall.