The ACA’s Legislative Findings Do Not Constitute an “Inseverability Clause”
In Texas v. California, the Supreme Court is asked to consider whether the individual mandate is inseverable from the rest of the Affordable Care Act. If so, the state and individual plaintiffs in the case argue, the unconstitutionality of a penalty-less mandate requires striking down the entire ACA.
The plaintiffs argue that this result is required because the ACA contained an “inseverability clause” that was not repealed when Congress zeroed out the tax penalty used to enforce the mandate. The only problem is that there is no “inseverability clause” in the ACA. Rather, what the plaintiffs are referring to are congressional findings stressing the importance of the (then enforceable) individual mandate to the ACA’s insurance market reforms. These findings were adopted in an effort to help insulate the mandate from an expected Commerce Clause challenge. Nonetheless, the plaintiffs’ briefs repeatedly refer to these findings as an “inseverability clause” and the Justice Department’s brief refers to the findings as “the functional
equivalent of an inseverability clau
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