On Tuesday morning, the Supreme Court will hear oral arguments in the latest case challenging the Affordable Care Act (“ACA”), once again placing the Court at the center of a dispute affecting the healthcare of millions of people around the country. The Court’s ultimate decision will be important in its own right, but the case also bears scrutiny because it could potentially have unintended but lasting consequences for federal criminal law as well.
In California v. Texas, the Supreme Court will consider the constitutionality of the ACA’s individual mandate—the requirement that everyone buy health insurance—as amended in 2017 to no longer carry a penalty for noncompliance. After addressing the issue of standing, the Supreme Court will first assess whether the penalty-free mandate still qualifies as a tax. Second, if the penalty-free mandate is unconstitutional, the Court will address whether the mandate can be “severed” and excised from the ACA, leaving the remainder of the ACA intact, or whether the entire ACA must be struck down.
In short, the fate of the ACA may well turn on the Supreme Court’s application of the severability doctrine. In the criminal law context, the same doctrine gave rise to the modern federal criminal sentencing scheme. Fifteen years ago, in United States v. Booker, a fractured Supreme Court held that the United States Sentencing Guidelines would become advisory, rather than mandatory, because the subsection of the Sentencing Reform Act of 1984 making the Guidelines mandatory could be severed in its entirety from the rest of the statute, “despite, by [the Court’s] own admission, ‘significantly alter[ing] the system that Congress designed.’” But a shift in the Court’s severability doctrine could make Booker vulnerable to future challenges, and to the extent Booker vastly improved federal criminal sentencing, Congress should act to codify Booker’s regime before that happens.
Chief Justice John Roberts has described the severability doctrine as “a scalpel rather than a bulldozer.” This apt metaphor captures the essence of this principle of judicial review: courts should strike down unconstitutional provisions of statutes while saving the valid provisions, unless the legislature would not have intended for the statute to remain in effect absent the unconstitutional provisions. Specifically, the Court asks whether the surviving provisions of the statute in question are “capable of functioning independently” and “nothing in the statute’s text or historical context makes it evident that Congress . . . would have preferred” no statute at all to a statute without the offending provision.
United States v. Booker And The Modern Federal Sentencing Regime
In United States v. Booker, the Supreme Court vividly illustrated how difficult the severability doctrine can be to apply in practice. Booker considered whether the Sixth Amendment is violated by the imposition of an enhanced sentence under the then-mandatory United States Sentencing Guidelines (the “Guidelines”) based on the sentencing judge’s determination of a fact (other than a prior conviction) that was not found by the jury or admitted by the defendant. A five-four majority of the Court, in the “constitutional” opinion by Justice John Paul Stevens, found that the Sixth Amendment requires juries, not judges, to find facts relevant to sentencing. Justice Stevens’ constitutional opinion was joined by Justices Antonin Scalia, David Souter, Clarence Thomas, and Ruth Bader Ginsburg.
On behalf of a separate five-four majority, Justice Breyer wrote the so-called “remedial” opinion making the Guidelines advisory. The remedial opinion focused primarily on the subsection of the federal sentencing statute that makes the Guidelines mandatory, Section 3553(b)(1) of Title 18, United States Code, and concluded that “this provision must be severed and excised” (as must a separate provision relating to appellate review). After engaging in what one commentator has called “a wide-ranging search for indicia of the legislature’s likely intentions regarding the substantive fallback law,” the remedial opinion concluded that “the Guidelines system” would become “advisory while maintaining a strong connection between the sentence imposed the offender’s real conduct.” Justice Breyer’s remedial opinion was joined by Chief Justice William Rehnquist and Justices Sandra Day O’Connor, Anthony Kennedy, and Ginsburg.
Several dissenting opinions criticized the remedial holding. Justice Stevens, joined by Justices Souter and Scalia, argued that Section 3553(b)(1) was constitutional on its face, given that the constitutional opinion’s jury factfinding requirement would “at most apply to a minority of sentences imposed under the Guidelines” and could be addressed in those cases in various ways, including by more specific indictments. Justice Stevens criticized the remedial opinion as an “extraordinary exercise of authority” that “represents a policy choice that Congress has considered and decisively rejected.”
Although he joined Justice Stevens’ opinion, Justice Scalia wrote a separate dissent to discuss issues concerning appellate review of sentences, observing that “[t]here can be no doubt that the Court’s severability analysis has produced a scheme dramatically different from anything Congress has enacted since 1984.” Justice Thomas also wrote a dissenting opinion, explaining that he disagreed with the reliance in Justice Stevens’ dissent on legislative history and that the proper course would have been to invalidate the offending statutory provisions only to the extent necessary to cure the constitutional defect. Justice Thomas wrote, “[r]ather than applying the usual presumption in favor of severability, and leaving the Guidelines standing insofar as they may be applied without any constitutional problem, the remedial majority converts the Guidelines from a mandatory system to a discretionary one. The majority’s solution fails to tailor the remedy to the wrong, as this Court’s precedents require.”
The Future Of The ACA And The Federal Criminal Sentencing Regime
The Supreme Court’s splintered severability analysis in Booker may have an impact on the future of the ACA. The Petitioners and the U.S. House of Representatives as Respondent Supporting Petitioners in California v. Texas both cite Booker in support of their arguments advocating for severability in the event the Supreme Court finds the individual mandate to be unconstitutional. In turn, where the Supreme Court lands on severability in California v. Texas may have an impact on the future of federal criminal sentencing.
The Booker opinions anticipated that sentencing law and practice would evolve. Justice Scalia mused that the “worst feature” of the remedial majority’s newly announced sentencing scheme is that “no one knows” how the advisory Guidelines will function in practice. Justice Breyer acknowledged that “[o]urs, of course, is not the last word. The ball now lies in Congress’ court.” Yet, fifteen years after Booker, Congress has opted to leave the federal sentencing regime largely as the Supreme Court left it. Despite the initial tumult following Booker, the advisory Guidelines have worked well in practice. Certainly, they are a vast improvement on the “utter travesty of justice that sometimes result[ed] from the guidelines’ fetish with abstract arithmetic” under the mandatory regime.
But the fact that the advisory Guidelines arguably have worked well does not change the fact that the system rests on a somewhat unstable foundation, as Booker hardly has the trappings of a so-called “super-precedent.” Booker’s two opinions only came out as they did because of a single vote, that of Justice Ginsburg, who was the only member of the Court who signed on to both the constitutional holding and the remedial holding.
To see how a challenge to Booker could materialize, one needs only to look to a case from earlier this year, Ramos v. Louisiana, in which the Supreme Court ruled that the Sixth Amendment requires a unanimous verdict, and in doing so overturned a prior Supreme Court case that, like Booker, was decided by a five-four vote. In explaining the majority’s reasons for overturning precedent, Justice Gorsuch relied in part on the fact that the fifth vote, Justice Powell’s, made little sense, because it was “based only on a view of the Fourteenth Amendment that he knew was (and remains) foreclosed by precedent.” However effective Booker’s regime has been in practice, it takes little imagination to envision a future Court similarly criticizing Justice Ginsburg’s arguably conflicting votes in Booker, which in their totality reflected a view that no other justice endorsed.
Only two justices from Booker remain on the Court – Justice Breyer and Justice Thomas. How the other justices will come down on severability in the ACA case is a topic of great debate. Looking forward, if the Court reaches the severability issue, it might be good news for the ACA’s fate if the Court uses a “scalpel rather than a bulldozer” and leaves the ACA intact. Such a holding, however, could open the door for the Supreme Court one day to revisit Booker, or for a future Congress to try to reinstate mandatory Guidelines. After all, taking a “scalpel” to the Sentencing Reform Act may well have left the mandatory Guidelines in place for the mine run of cases, in line with the dissenting opinions of Justices Stevens and Thomas. To the extent Booker has worked well in practice, and to the extent those on all sides of federal criminal cases agree, Congress should settle the matter and codify Booker’s regime once and for all.
Chelsea Scism, an associate at the firm, assisted in the preparation of this blog.
To read more from Brian A. Jacobs, please visit www.maglaw.com.