Sen. Diane Feinstein (D-CA), the ranking member on the Senate Judiciary Committee, pronounced herself “really impressed” with Judge Amy Coney Barrett’s explanation of the doctrine of severability during her confirmation hearing on Wednesday.
The issue is crucial to a current challenge to Obamacare that Barrett would hear if confirmed to the Supreme Court.
In an exchange between the leading Democrat and the nominee, Barrett used a “Jenga” analogy to explain the idea:
Feinstein: Yesterday, you spoke of California v. Texas, the current case seeking to strike down the Affordable Care Act. You said, I think, that the issue before the Court is “severability.” Meaning whether the Court could still uphold the Affordable Care Act if it rules that the individual mandate is unconstitutional. And you said yesterday this question was not before the Court. As I understand this, Chief Justice [John] Roberts and the majority did involve the issue of severability in a case known as the NFIB, National Federation of Independent Businesses, v. Sebelius. There, the Chief Justice, and the 5-4 majority that included Justice [Ruth Bader] Ginsburg, struck down one part of the law, the Medicaid expansion provision, but allowed the rest of the law to stand because they found it was “severable” from the portion they struck down. Justice [Antonin] Scalia dissented from this conclusion, [and] stated that “the unconstitutionality of the individual mandate and the Medicaid expansion requires the invalidation of the Affordable Care Act’s other provisions.” In other words, the justice believed that the law was not severable and the entire law had to be struck down, including provisions protecting people with pre-existing conditions. You have been close to the justice’s philosophy and in these hearings, you’ve also said that this doesn’t mean you would reach all the same conclusions. So can you explain to us today how you would disagree or agree with Justice Scalia’s views of severability in that NFIB, National Federation of Independent Business case?
Barrett: What I think I can say without expressing disagreement or agreement, for the reasons I’ve said yesterday, not being able to grade precedents — the severability issue, first of all, the majority holding, as you’ve recognized, was that even though the Medicaid provision was unconstitutional, it was severable. So Justice Scalia expressed his view in dissent. Even by Justice Scalia’s view, the issue would be different in California versus Texas, for two reasons. One, Justice Scalia thought two provisions of the Constitution were unconstitutional, so if you picture severability being like a Jenga game, it’s kindof if you pull one out, can you pull it out while it all stands? Or if you pull two out, will it still stand? So Justice Scalia, his view was that if you pulled those two provisions out, could it still stand? And here we are talking about one. And also, Congress has amended the statute since NFIB versus Sebelius, and it zeroed out the mandate. So now, I mean — California versus Texas involves a different provision because of the zeroing out that was done by amendment. So that’s how the two cases present slightly different issues.
Feinstein: What do you think of all that?
Barrett: What do I think of — of severability? Or …
Feinstein: In that instance.
Barrett: I think the doctrine of severability as it’s been described by the Court, you know, serves a valuable function of trying not to undo your work when you wouldn’t want a court to undo your work. Severability strives to look at a statue as a whole and say, would Congress have considered this provision so vital that, kind in the Jenga game, pulling it out, Congress wouldn’t want the statute anymore? So it’s designed to effectuate your intent. But — severability is designed to say well, does Congress still want the statute to stand even with this provision gone? Would Congress have still passed the same statute without it? So I think insofar as it tries to effectuate Congress would have wanted, it’s the Court and Congress working hand-in-hand.
Feinstein: Thank you, that’s quite a definition, I’m really impressed. Thank you.
Wednesday is the last day of the confirmation hearing before the committee will likely vote to advance Barrett’s nomination.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). His newest e-book is The Trumpian Virtues: The Lessons and Legacy of Donald Trump’s Presidency. His recent book, RED NOVEMBER, tells the story of the 2020 Democratic presidential primary from a conservative perspective. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.