Democratic California Sen. Dianne Feinstein said she was “really impressed” with Judge Amy Coney Barrett’s definition of “severability” during a discussion about the Affordable Care Act (ACA) at Wednesday’s Senate Judiciary Committee confirmation hearings.
Feinstein asked Barrett to explain her views as compared to that of the late Justice Antonin Scalia, who in dissent argued that the entire ACA should be unconstitutional.
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Barrett likened the concept to a Jenga game where the question becomes, “if you pull one out, can you pull it out while it all stands?”
She went on to explain that, while Scalia believed pulling both the Medicaid provision and the individual mandate out would make the law fall, the upcoming case only deals with the individual mandate.
Asked by Feinstein what she thought of severability in general, Barrett said it “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 statute as a whole and say, ‘would Congress have considered this provision so vital that, kind of in the Jenga game, pulling it out, Congress wouldn’t want the statute anymore?’ So it’s designed to effectuate your intent. Severability is designed to say well, would Congress still want the statute to stand even with this provision gone? Would Congress still pass the same statute without it?”
“I think insofar as it tries to effectuate what Congress would have wanted it’s the court and Congress working hand-in-hand,” Barrett concluded.
“Thank you, that’s quite a definition, I’m really impressed,” Feinstein said. “Thank you.”
Democrats have made an issue during Barrett’s confirmation of an impending Supreme Court case dealing with whether the elimination of the individual mandate by Republicans in 2017 is “severable” from the rest of the ACA. (RELATED: ‘When You Are Actually The Smartest Person In The Room, You Don’t Need Notes’: Fox News’ John Roberts Praises Amy Coney Barrett)
While the Trump administration’s position is that the entire law should be deemed unconstitutional, Barrett told Republican South Carolina Sen. Lindsey Graham on Wednesday that “the presumption is always in favor of severability,” indicating that the law could possibly survive a court challenge even if the individual mandate is unconstitutional.