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The United States Supreme Court is once again considering a case that challenges the constitutionality of the Affordable Care Act (“ACA”). In this round of litigation, plaintiffs argue that because Congress lowered the individual mandate tax penalty to zero in the 2017 Tax Act that makes the individual mandate itself unconstitutional and that, furthermore, the individual mandate cannot be severed from the rest of the ACA. The District Court agreed with the plaintiffs and struck down the entire ACA, and the Supreme Court granted cert to hear this momentous question. A decision is expected by summer of 2021.

The ACA is a vast omnibus health law that has fundamentally changed our health care system in a multitude of ways. This Article explores the breadth of its provisions, many of which are completely unrelated to the individual mandate or the penalty tax. The change to the tax penalty occurred in the 2017 Tax Act, legislation that was passed using a special, streamlined Congressional procedure called budget reconciliation. Budget reconciliation does not allow for filibuster in the Senate and limits the types of provisions that can be considered. Significantly, the 2017 Congress could not have repealed the ACA outright using budget reconciliation procedures.

The key question in severability doctrine is legislative intent. Courts seek to determine whether the legislature would have passed the legislation without the offending provision. If so, then the offending provisions is severed, and the rest of the legislation continues in effect. This Article argues that courts should consider Congressional procedure when determining legislative intent. If the legislature that passed the offending provision could not have used its chosen procedure to repeal the entire law, the courts should not offer a back-door path to that same result. If a judge allows Congress to achieve through the courts a repeal that would have been impossible to achieve through the legislative process, that in effect is judicial repeal and a serious violation of separation of powers.

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Seton Hall Legislative Journal:





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