Some Modest Predictions on the Severability of the Individual Mandate

The Court’s decision on the severability of the individual mandate may be the aspect of the PPACA litigation that is most difficult to predict. If the Court holds that the individual mandate is constitutional, then severability won’t be an issue in the first place. If severability does arise, whether and how the Court will sever the mandate is unclear. In part, this is because of problems with severability doctrine itself. Notwithstanding over a century of cases on the issue, the Court has had a hard time settling upon a definitive severability test. Sometimes the emphasis has been on legislative intent. Other times the focus has been on whether the constitutional remainder can function without the invalid part. Still other times the Court has severed or refused to sever without acknowledging the doctrine at all. The oral argument on severability reflected this state of affairs, as the Justices spent a considerable amount of time exploring the merits of several possible tests. Without knowing the doctrine, it is difficult to anticipate a result.

In part, the unpredictability also reflects the absence of a completely satisfying way to sever the mandate if it is unconstitutional. Because the PPACA lacks a severability clause, covers such a diversity of topics, and reflects a variety of legislative compromises, it is hard to identify a clear legislative intent with respect to severability. Because the invalidation of the mandate will render certain aspects of the core health-care reforms financially problematic, it is unsatisfying to focus exclusively on the textual separability of the mandate from surrounding provisions. And because courts are poorly equipped to appreciate the complexities of health care policy, it seems problematic to base severability on anticipated financial implications.

That being said, I think we can reasonably make a couple of predictions about this aspect of the decision. First, if the Court holds that the individual mandate is not severable, that holding will rest on the votes of the conservative Justices, who generally seemed much more skeptical of severability than their counterparts during oral argument.

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The Self-Defense Argument for Intervention in Syria

News media are reporting today that the strife in Syria has, for the first time, spilled across international borders, with Syrian government forces firing into Turkey last night, killing two people and injuring three others, and also firing into Lebanon. The New York Times suggests that a “large number of reinforcements for the government troops, backed by tanks and helicopters,” may have arrived “close to Turkish territory.” And of course Turkey is already sheltering a large number of refugees from the conflict—over 24,000, by the Turkish government’s estimate.

All of which raises the question of what, if anything, can be done. For the past year, the answer has been very little: Russia and China blocked effective measures in the Security Council; the legitimacy of humanitarian intervention on the basis of the responsibility-to-protect (“R2P”) principle has been contested; and neighboring states seemed to lack a persuasive argument for intervention on the basis of self-defense.

But yesterday’s events suggest that the self-defense argument is strengthening. Article 51 of the UN Charter recognizes an “inherent right of individual or collective self-defense if an armed attack occurs against” a member state, “until the Security Council takes measures necessary to maintain international peace and security.” There is at least a reasonable argument that by firing bullets across the border, amassing troops nearby, and forcing Turkey to cope with a significant influx of refugees, Syria is violating Turkey’s territorial integrity and creating justification for an armed Turkish intervention on the basis of a Turkish right of self-defense.

To be clear, I’m not necessarily advocating the legality of intervention; I’m saying simply that the argument for a self-defense-based intervention is getting stronger. And, of course, whether intervention makes sense as a policy matter is another issue altogether.

Cross-posted at PrawfsBlawg.

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In Praise of Flip-Floppers (Part III)

In my last two posts I scrutinized the tendency for voters, the media, and politicians to use flip-flopper critiques indiscriminately. Common usage is indiscriminate in part because it seems to accept without question that position changes by candidates are always a result of pandering, when in fact other, justifiable reasons may be the cause in any given case. Common usage is also indiscriminate because it denounces position changes by candidates for office without paying attention to how the constitutional features of the office influence the validity of the changes.

Given these defects, why does the flip-flopper critique remain so common? I have a few guesses:

First, perhaps voters and the media use the critique in an attempt to simplify the candidate selection process. Position changes complicate candidate identities, and complexity makes it harder to brand and distinguish candidates. By discouraging position changes, the critique facilitates voter choice.

Second, perhaps voters use the critique because they know that electoral mandates are difficult to enforce intra-term. If a candidate elected on one platform changes her position on a matter once in office, it is always possible for the electorate to vote her out upon the expiration of the term. But there is little that can be done until then. And in the meantime the official may work to create laws that reflect her new, unpopular position. Maybe voters scrutinize candidates for position changes to reduce the risk of this scenario. The flip-flopper critique, in other words, fulfills a vetting function, weeding out those candidates who are most likely to change positions in an unforeseeable manner.

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