NFIB Sebelius Dissent



gress would not, those provisions, too, must be invalidated.
See Alaska Airlines, supra, at 685 (““[T]he unconstitu-
tional provision must be severed unless the statute cre-
ated in its absence is legislation that Congress would not
have enacted”); see also Free Enterprise Fund, supra, at
___ (slip op., at 29) (““[N]othing in the statute’’s text or
historical context makes it ‘’evident’’ that Congress, faced
with the limitations imposed by the Constitution, would
have preferred no Board at all to a Board whose members
are removable at will””); Ayotte v.  Planned Parenthood of
Northern New Eng., 546 U. S. 320, 330 (2006) (“”Would the
legislature have preferred what is left of its statute to no
statute at all””); Denver Area Ed. Telecommunications  
Consortium, Inc. v. FCC, 518 U. S. 727, 767 (1996) (plural-
ity opinion) (“”Would Congress still have passed §10(a) had
it known that the remaining provisions were invalid””
(internal quotation marks and brackets omitted)).

 The two inquiries—-whether the remaining provisions
will operate as Congress designed them, and whether
Congress would have enacted the remaining provisions
standing alone—-often are interrelated.  In the ordinary
course, if the remaining provisions cannot operate accord-
ing to the congressional design (the first inquiry), it almost
necessarily follows that Congress would not have enacted
them (the second inquiry). This close interaction may
explain why the Court has not always been precise in
distinguishing between the two.  There are, however,
occasions in which the severability standard’s first inquiry
(statutory functionality) is not a proxy for the second
inquiry (whether the Legislature intended the remaining
provisions to stand alone).


  The Act was passed to enable affordable, ““near-universal””
health insurance coverage.  42 U. S. C. §18091(2)(D).
The resulting, complex statute consists of mandates and


other requirements; comprehensive regulation and penal-
ties; some undoubted taxes; and increases in some gov-
ernmental expenditures, decreases in others.  Under the
severability test set out above, it must be determined if
those provisions function in a coherent way and as Con-
gress would have intended, even when the major provi-
sions establishing the Individual Mandate and Medicaid
Expansion are themselves invalid.

 Congress did not intend to establish the goal of near-
universal coverage without regard to fiscal consequences.
See, e.g., ACA §1563, 124 Stat. 270 (“”[T]his Act will reduce
the Federal deficit between 2010 and 2019″”). And it did
not intend to impose the inevitable costs on any one indus-
try or group of individuals. The whole design of the Act
is to balance the costs and benefits affecting each set
of regulated parties. Thus, individuals are required to
obtain health insurance.  See 26 U. S. C. §5000A(a).  Insur-
ance companies are required to sell them insurance re-
gardless of patients’ pre-existing conditions and to comply
with a host of other regulations. And the companies must
pay new taxes.  See §4980I (high-cost insurance plans);
42 U. S. C. §§300gg(a)(1), 300gg-–4(b) (community rating);
§§300gg–-1, 300gg–-3, 300gg–-4(a) (guaranteed issue);
§300gg–-11 (elimination of coverage limits); §300gg–-14(a)
(dependent children up to age 26); ACA §§9010, 10905,
124 Stat. 865, 1017 (excise tax); Health Care and Educa –
tion Reconciliation Act of 2010 (HCERA) §1401, 124 Stat.
1059 (excise tax). States are expected to expand Medicaid
eligibility and to create regulated marketplaces called ex-
changes where individuals can purchase insurance.  See
42 U. S. C. §§1396a(a)(10)(A)(i)(VIII) (2006 ed., Supp. IV)
(Medicaid Expansion), 18031 (exchanges). Some persons
who cannot afford insurance are provided it through the
Medicaid Expansion, and others are aided in their pur-
chase of insurance through federal subsidies available on
health-insurance exchanges.  See 26 U. S. C. §36B (2006