The Word of the Day: Severability

Tue, 01 Feb 2011 13:12:37 +0000

Judge Roger Vinson, a district court judge in Florida, has ruled the individual mandate in the Affordable Care Act unconstitutional and gone further to say that the unconstitutional part is not severable from the rest of the legislation, requiring the whole law to be invalidated.  I think he is correct on the lack of severability.  As the legislation developed, it was clear that an individual mandate was an essential part of the legislative intent.  The other provisions of the law about pricing -- community rating and guaranteed issue -- are predicated on it.

But I find the whole discussion of the individual mandate being unconstitutional to be ridiculous.  Is the following system unconstitutional?

  1. Everyone is entitled to Medicaid.
  2. Everyone is required to file an income tax return.
  3. Everyone who can show proof of health insurance other than Medicaid can deduct $X from his/her income tax liability.

This system charges $X for Medicaid coverage unless some other voluntary action is taken.  (Set $X high enough, and no one will seek to be in Medicaid.)  If that's unconstitutional, then so are the charitable deduction and the home mortgage interest deduction, along with every tax-advantaged saving vehicle. 

But the law is not written that way, so perhaps the law is not constitutional the way it was written.  And with the current partisan divisions in Congress, it is not clear that the law could be rewritten in that way .  Dave Weigel of Slate traces out the development of the law and its inattention to severability.  Here were my reactions to the Senate bill when it passed.