On January 31, a Florida District Court, in Florida v. HHS, became the second federal court to find the individual mandate unconstitutional. A federal court in the Eastern District of Virginia, in Virginia v. Sebelius, also found the mandate unconstitutional in December. Both courts held that requiring citizens to purchase insurance goes beyond the limits of what Congress can do under its power to regulate interstate commerce. (For more on the constitutional arguments for and against the individual mandate, click here for my earlier post The Constitutionality of the Individual Mandate).

The courts disagree, however, about whether the mandate is severable from the rest of the Act, which has important implications for other important consumer protections in the Act. If the mandate is severable, this leaves the rest of the Act intact. If not, the entire Act falls with the mandate.

The Virginia court held that the mandate was severable from the rest of the Act based on language from recent Supreme Court cases that urge restraint when invalidating laws. The court highlighted principles that seemed to create a presumption in favor of severability: "Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem, severing any 'problematic portions while leaving the remainder intact.'" "[T]he 'normal rule' is 'that partial, rather than facial invalidation is the required course.'" "'Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.'"

In its reasoning, the court noted that the Act contained many provisions that were not directly tied to the mandate or even related to private insurance regulation at all: expansion of the Medicare enrollment perod for disabled veterans; provisions devised to improve women's health, prevent abuse, and ameliorate dementia; provisions governing abstinence education and disease prevention; and a requirement that employers provide a "reasonable break time" and separate room for nursing mothers to go and express breast milk. Moreover, the court found that it would be "virtually impossible" to determine whether Congress would have passed this Act without the mandate given the complexity and length of the 2,700 page law, as well as the speed with which it was submitted for a vote. This uncertainty about Congressional intent led the Virginia court to show restraint by finding severability.

The Florida court recently came to the opposite conclusion. It acknowledged Supreme Court language that urged restraint, but also noted that severability is inappropriate where a "statute is viewed as a carefully-balanced and clockwork-like statutory arrangement comprised of pieces that all work toward one primary legislative goal, and if that goal would be undermined if a central part of the legislation is found to be unconstitutional." In applying this standard to the Act, the court first characterized the provisions in the Act as falling into two categories: those related to private insurance regulation (such as the guarantee issue and rate regulation provisions), and those unrelated to private insurance regulation (such as the abstinence education and Medicare protections mentioned above).

The court viewed the first category as an easy case: the mandate clearly was not severable from the other insurance-related regulations based on the federal government's own assertion that the mandate was an "essential link" to achieving its broader goals of expanding the availability and affordability of private insurance coverage. The Obama administration in public statements and legal briefs has repeatedly claimed that the individual mandate was a critical piece of this overarching regulatory scheme.

The non-insurance related regulations, however, presented a more difficult question for the court. The court admitted that many of these regulations could function independently of the individual mandate, but said that this was not the relevant legal question. Rather, the proper question was whether Congress intended for these provisions to function independently of one another.

In trying to determine Congressional intent, the court seemed to rely heavily on the fact that the Act did not contain a severability clause, but admitted that absence of the clause is not determinative. The court also echoed the concerns of the Virgina court that trying to discern legistative intent from the myriad provisions in the Act would be an extremely difficult and lengthy process: "Going through the 2,700-page Act line-by-line, invalidating dozens (or hundreds) of some sections while retaining dozens (or hundreds) of others, would not only take considerable time and extensive briefing, but it would, in the end, be tantamount to rewriting a statute in an attempt to salvage it...." Indeed, the court refused to engage in this kind of analysis. Nonetheless, the court concluded that Congress either did not believe that other parts of the Act could survive or that it would want them to survive independently, and held that the mandate was not severable from the rest of the Act.

The Virginia court showed judicial restraint by only invalidating the mandate and portions of the law which were directly dependent on that provision. It resolved uncertainty about legislative intent in favor of the normal rule of severability. The Florida court, on the other hand, used this uncertainty to justify taking the more drastic step of invalidating the entire Act, despite indisputable evidence that many provisions could function independently of the mandate. Both decisions have been appealed and will likely reach the U.S. Supreme Court.