Reading the ACA’s Findings: Textualism, Severability and the ACA’s Return to the Court

Abstract

The Affordable Care Act (ACA) is back in the Court, but challengers' "textualist" arguments are not textualist at all. They argue a findings section in the ACA is an "inseverability clause," meaning that if the insurance mandate is eliminated, the whole ACA goes down with it. They argue this despite the fact that those findings are specific to one subsection, of one part, of one subtitle, of the ten-title law, and despite the fact that the language they seize on is boilerplate language that Congress often uses not for severability, but to justify its commerce power. Congress expressly tells us that too in the ACA's text. Challengers argue that Congress has explicitly spoken to the issue, but Congress's established drafting practices, and examples throughout the U.S. Code, make clear that when Congress actually writes an inseverability clause, it is unmistakably explicit about it and uses specific language absent from the ACA. Inseverability is a nuclear bomb. Congress doesn't hide it in mouseholes. There is a burgeoning movement to better understand how Congress drafts laws, one as relevant for textualists as anyone else.