Barrett: Judges should presume laws can be saved if part is thrown out

Judge Amy Coney Barrett on Wednesday said judges should presume that a larger law can be saved even when part of it is ruled unconstitutional.

Senators pushed Judge Amy Coney Barrett to clarify her perspective on severability, a legal doctrine that may be key to the Affordable Care Act’s survival before the Supreme Court. The Senate is on schedule to confirm Barrett before the justices hear arguments on Nov. 10 in California v. Texas, a case in which Republican attorneys general and the Trump administration argue the entire ACA should be struck down because Congress zeroed out the individual mandate.

When Senate Judiciary Committee Chair Lindsey Graham (R-S.C.) asked Barrett to define severability doctrine, Barrett said the central question is whether a provision ruled to be unconstitutional is so central to the statute that it would be unconstitutional to allow the rest of the law to remain.

“The presumption is always in favor of severability,” Barrett said.

Senate Judiciary Committee ranking member Dianne Feinstein (D-Calif.) asked Barrett about a prior ruling on the ACA in which the majority of justices in National Federation of Independent Business v. Sebelius ruled that some provisions were severable from the rest of the ACA. But the late Justice Antonin Scalia, who Barrett clerked for and saw as a legal mentor, wrote a dissent in the case arguing that the unconstitutionality of certain parts of the ACA should have entirely invalidated the law.

Barrett responded that NFIB v. Sebelius addressed two key provisions of the ACA, the Medicaid expansion and the individual mandate, while California v. Texas only deals with one: a zeroed-out individual mandate, which Barrett said is a fundamentally different provision than the court considered before.

“I think the doctrine of severability serves a valuable function of trying not to undo your work when you wouldn’t want a court to undo your work,” Barrett told Feinstein.”Severability strives to look at a statute as a whole and say, would Congress have considered this provision so vital that in the Jenga game, that pulling it out, Congress wouldn’t want the statute anymore?” Barrett said.

Many Republican senators have criticized the ACA during Barrett’s confirmation hearings and supported its repeal in 2017. But Senate health committee Chair Lamar Alexander has said senators were not under the impression that they were repealing the ACA when they zeroed out the individual mandate.

“Congress specifically repealed the individual mandate penalty, but I didn’t hear a single senator say that they also thought they were repealing protections for people with preexisting conditions,” Alexander said in June 2018. He has reiterated his position in the following years.

The Judiciary Committee is on schedule to hold a final vote on Barrett’s nomination on Oct. 22, which paves the way for a potential confirmation before Nov. 10.


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