‘Congress can fix this’

One of the more lively exchanges during last week’s oral arguments occurred between Douglas Letter, general counsel for the House of Representatives, who was defending the ACA before the 5th U.S. Circuit Court of Appeals, and U.S. Circuit Judge Kurt Engelhardt around the issue of severability. The following is an edited transcript:

LETTER:

The kinds of provisions here that would be struck down if there’s no severability are for example, the provision about when you can be denied or charged more insurance for pre-existing conditions. The provision about children (being) kept on (their) parent’s insurance until they are 26.

ENGELHARDT:

Let me ask you about that. Isn’t the House the best entity to remedy? Can’t they put together a cafeteria-style package of all of these individual features that are so attractive—the ones that you are talking about and popular in various quarters. They could do this tomorrow. Couldn’t they put them together and vote on them like that? Pass all of the things and moot out the issue of severability here?

LETTER:

And obviously, the president would sign that, right? No. Obviously not. [ Audible laughter]

ENGELHARDT:

And that’s exactly the point. Because there’s a political solution here that you … various parties are asking this court to roll up its sleeves and get involved in. … Why does Congress want the Article 3 judiciary to become the taxidermist for every legislative big game accomplishment that Congress achieves? Congress can fix this. [ Audible laughter]

LETTER:

Yes, your honor, that very same statement would be true in every severability case. Yet we know, the Supreme Court has said to you, “No, Congress doesn’t have to fix this, you can fix it.” And the Supreme Court has told you how to do it—maintain everything you can that can stand on its own and be constitutional. The Supreme Court has ordered you to do that.