NFIB Sebelius Dissent



universal”” health insurance coverage.  §18091(2)(D) (2006
ed., Supp. IV).  The two pillars of the Act are the Individ-
ual Mandate and the expansion of coverage under Medicaid.
In our view, both these central provisions of the Act-—the
Individual Mandate and Medicaid Expansion-—are invalid.
It follows, as some of the parties urge, that all other provi-
sions of the Act must fall as well. The following section
explains the severability principles that require this con-
clusion. This analysis also shows how closely interrelated
the Act is, and this is all the more reason why it is judicial
usurpation to impose an entirely new mechanism for
withdrawal of Medicaid funding, see Part IV-–F, supra,
which is one of many examples of how rewriting the Act
alters its dynamics.


  When an unconstitutional provision is but a part of a
more comprehensive statute, the question arises as to the
validity of the remaining provisions.  The Court’’s author-
ity to declare a statute partially unconstitutional has been
well established since Marbury v.   Madison, 1 Cranch 137
(1803), when the Court severed an unconstitutional provi-
sion from the Judiciary Act of 1789. And while the Court
has sometimes applied ““at least a modest presumption in
favor of . . . severability,”” C. Nelson, Statutory Interpreta-
tion 144 (2010), it has not always done so, see, e.g., Minne-
sota v. Mille Lacs Band of Chippewa Indians, 526 U. S.
172, 190-–195 (1999).

 An automatic or too cursory severance of statutory
provisions risks ““rewrit[ing] a statute and giv[ing] it an
effect altogether different from that sought by the meas-
ure viewed as a whole.””  Railroad Retirement Bd. v. Alton  
R. Co., 295 U. S. 330, 362 (1935).  The Judiciary, if it
orders uncritical severance, then assumes the legislative
function; for it imposes on the Nation, by the Court’s
decree, its own new statutory regime, consisting of poli-


cies, risks, and duties that Congress did not enact. That
can be a more extreme exercise of the judicial power than
striking the whole statute and allowing Congress to ad-
dress the conditions that pertained when the statute was
considered at the outset.

 The Court has applied a two-part guide as the frame-
work for severability analysis. The test has been deemed
““well established.”” Alaska Airlines, Inc. v. Brock, 480
U. S. 678, 684 (1987).  First, if the Court holds a statutory
provision unconstitutional, it then determines whether
the now truncated statute will operate in the manner Con-
gress intended. If not, the remaining provisions must be
invalidated. See id., at 685.   In Alaska Airlines, the Court
clarified that this first inquiry requires more than ask-
ing whether “”the balance of the legislation is incapable of
functioning independently.”” Id., at 684.  Even if the re-
maining provisions will operate in some coherent way,
that alone does not save the statute. The question is
whether the provisions will work as Congress intended.
The ““relevant inquiry in evaluating severability is whether
the statute will function in a manner consistent with
the intent of Congress.”” Id., at 685 (emphasis in original).
See also Free Enterprise Fund v. Public Company Account-
ing Oversight Bd., 561 U. S. ___, ___ (2010) (slip op., at
28) (the Act “”remains fully operative as a law with these
tenure restrictions excised””) (internal quotation marks
omitted); United States v. Booker, 543 U. S. 220, 227
(2005) (“”[T]wo provisions . . . must be invalidated in order
to allow the statute to operate in a manner consistent
with congressional intent””);  Mille Lacs, supra, at 194 (““[E]m-
bodying as it did one coherent policy, [the entire order]
is inseverable””).

 Second, even if the remaining provisions can operate as
Congress designed them to operate, the Court must de-
termine if Congress would have enacted them standing
alone and without the unconstitutional portion.  If Con-

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