Logical Bare Necessities

JIM HUFFORD

Originally published 2/7/11 on Organon

Andrew Koppelman at Balkinization calls Judge Vinson’s opinion a “bizarre collection of non sequiturs.” I’ve also noticed instances of the opposite: super-sequiturs—conclusions which logically follow from any premise whatsoever because they are necessarily true. Here’s one:

[T]he record seems to strongly indicate that Congress would not have passed the Act in its present form if it had not included the individual mandate.

(p. 66-67 of the opinion [pdf])(oomphasis added). I don’t know about the record, but the law of material equivalence strongly indicates that Vinson is right: if Congress had passed the ACAwithout the individual mandate, Congress would not have passed the ACA in its present form—with the individual mandate.

Reading more charitably, Vinson appears to be saying that Congress would not have passed anything if it hadn’t passed the package of insurance reforms. But is that right? Obviously we’ll never know. But it’s certainly not necessarily or indisputably right. Here’s Vinson:

Moreover, the defendants have conceded that the Act’’s health insurance reforms cannot survive without the individual mandate, which is extremely significant because the various insurance provisions, in turn, are the very heart of the Act itself.
* * *
In other words, the individual mandate is indisputably necessary to the Act’’s insurance market reforms, which are, in turn, indisputably necessary to the purpose of the Act.

(p. 68, 71). The insurance reforms are in Title I of the ACA. But there are 8 other titles in the ACA, and none of them are directly related to the mandate. Those titles cover Medicare and Medicaid reforms, quality of care, preventive care, the healthcare workforce, innovation, the CLASS Act disability insurance, etc. In terms of page quantity, Title I constitutes around 16%-18% of the whole Act.

It seems to me there are two things going on here. First, Judge Vinson is eliding the relationship between the mandate and the insurance reforms with the relationship between the insurance reforms and everything else in the ACA. The insurance reforms “cannot survive without” the mandate, and they “are the very heart of” the whole Act. Maybe so, but that does not mean the other 8 titles “cannot survive without” the mandate. No doubt the insurance reforms are centrally important. But that does not make them the sine qua non of the rest of the ACA. It seems distinctly possible that, had Congress failed to pass the ACA, it would have tried to save face and pass the less controversial parts of the ACA in a separate bill or two.

Second, Judge Vinson seems to have conflated the severability analysis with the Necessary and Proper Clause analysis. (In fairness, the Administration’s attorneys may have done so, too.) Both can be glossed as an assessment of how “essential” a provision is. But they are really very different. Michael Dorf extricates us from the confusion:

[T]he relatedness threshold for satisfying the Necessary and Proper Clause is lower than the relatedness threshold for saying that a provision of law is non-severable from another provision. In order to find that some measure satisfies the Necessary and Proper Clause, a court need only find that the provision is “convenient” or “useful” for accomplishing an end that is within an enumerated power such as the regulation of Commerce. That language doesn’t come from some post-New Deal/Warren Court expansion of the scope of federal power, but from the leading case on the scope of Congressional power, CJ John Marshall’s 1819 opinion in McCulloch v. Maryland.

By contrast, to find that a provision is non-severable from otherwise valid provisions requires a court to conclude that “the balance of the legislation is incapable of functioning independently.” (That’s a quote from Alaska Airlines v. Brock). That is on its face a tougher test to satisfy than the Necessary and Proper test.

Thus, the government can consistently argue: 1) that the mandate is sufficiently closely related to the other provisions of the Act that the mandate is necessary and proper to the regulation of the interstate commercial market in health insurance; but 2) that the mandate is not so closely related to those other provisions that they are incapable of functioning without it.

In other words, the mandate may be necessary to the implementation of federal regulation of insurance markets without being necessary to the implementation of the other 8 titles of the ACA.

Jim Hufford, J.D., lives in the San Francisco Bay Area and writes about health law and policy at his blog, Organon,

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