The Department of Justice recently announced that it will support a district court ruling that the entire Affordable Care Act (ACA) should be enjoined as the allegedly unconstitutional modifications in the Tax Cuts and Jobs Act (TCJA) that zeroed out the individual mandate to purchase health insurance are inseverable from the rest of the ACA. I will not go into detail as to why I think the opinion is legally suspect as Nicholas Bagley has previously covered quite well why that opinion is flawed. However, assuming for the sake of argument that the lower court’s holding is correct, it seems that the court did not take its holding to the logical conclusion of its legal reasoning. The court’s opinion seems to imply that it also should have enjoined the TCJA in its entirety.

By the severability argument used by the district court, it should have ruled the offending provision added by the TCJA inseverable from the TCJA and enjoined the entire TCJA too. The district court held that it was a “fool’s errand” to determine any severability intent in the 2017 Congress as Congress could not repeal the ACA through reconciliation. It appears that the court is saying that as the TCJA passed through reconciliation the legal standard for Congress’ intent in regards to severability is based upon what could pass through reconciliation.

To meet the relevant Senate reconciliation requirements, the TCJA had to be budget neutral outside of a 10-year window and only increase the deficit by $1.5 trillion over the first ten years after passage. Without the budgetary offset from zeroing out the individual mandate, the TCJA could not have complied with the reconciliation requirements. Thus, regardless of whether the provision was severable or inseverable from the rest of the ACA, if Congress knew the provision was unconstitutional, it would not have passed the TCJA as Congress would have violated the reconciliation requirements.

As the court’s holding states that Congress’ intent must be viewed through what Congress could do under reconciliation, Congress must have intended that any provision causing the TCJA to violate the reconciliation requirements be inseverable from the rest of the Act. As holding the individual mandate provision unconstitutional would violate Congress’ intent to comply with reconciliation requirements when passing the TCJA, the court should also have enjoined the TCJA.