The Attorneys General for Montana and Ohio filed an amicus brief on Monday with the US Court of Appeals for the Fifth Circuit asking the court to only invalidate the individual mandate of the Affordable Care Act (ACA) and to leave the rest of the act in place.
The brief was filed in the case State of Texas v. United States of America. A judge for the US District Court for the Northern District of Texas ruled in December that the entire Affordable Care Act was unconstitutional. The judge found that because Tax Cuts and Jobs Act of 2017 reduced the penalty for not having health insurance to $0, the individual mandate could no longer be considered to be a tax, and is thus unconstitutional.
The Montana and Ohio brief agrees that the 2017 Act results in the individual mandate no longer being a tax, and thus unconstitutional. However, the brief argues that the individual mandate is severable from the remainder of the ACA. As such, only the individual mandate should be struck down, but the remainder of the ACA should remain in place.
The brief states that entire laws can only be struck down due to the invalidity of a single provision “only if the remainder of the law is ‘incapable of functioning independently,’ or if it is otherwise ‘evident’ that Congress would have preferred no law at all to a law without the unconstitutional provision.” Because only the mandate was altered by Congress, the brief argues that the rest of the law is able to function without the mandate, and Congress did not intend there to be no law at all.
The brief criticized the district court decision as “extend[ing] judicial power … beyond its constitutional limit” and “bungl[ing] constitutional doctrine.” The district court is also accused of committing the “sin” of “throwing out all the usual rules in a case about the Affordable Care Act.”