Chief JusticeJohn G. Roberts Jr. (December 10, 2009) Photo by Diego M.Radzinschi/NATIONAL LAW JOURNAL.

For the second time in two weeks, the U.S. Supreme Court hasmade clear its views on how and when to sever unconstitutionalprovisions from a federal law, a crucial issue the justices willconfront next term concerning the fate of the Affordable CareAct.

The Trump administration's U.S. Justice Department argues in the health care caseCalifornia v. Texas that the entire health care insurance lawshould fall after Congress in 2017 eliminated the tax penalty forfailure to purchase health insurance. The penalty provision couldnot be severed from the rest of the act because of itsinterrelationship to other critical features of the law, then-U.S.Solicitor General Noel Francisco said in a recent brief.

Related: 'The entire ACA thus must fall,' Trump's DOJ tellsSupreme Court

On Monday, Justice Brett Kavanaugh in the case Barr v. AmericanAssn. of Political Consultants led a 7-2 majority in ruling that theunconstitutional exception for collection of government debts tothe federal ban on cellphone robocalls could be severed from theTelephone Consumer Protection Act.

Just last week, in the case Seila Law v. CFPB, Chief JusticeJohn Roberts Jr. wrote for the same 7-2 majority thatthe unconstitutional "for cause" removal protection for thedirector of the Consumer Financial Protection Bureau was severablefrom the Dodd-Frank act establishing the consumer bureau.

Both cases involved express severability clauses, but Robertsand Kavanaugh also addressed the "strong" presumption ofseverability in the absence of such clauses.

"Even in the absence of a severability clause, the 'traditional'rule is that 'the unconstitutional provision must be severed unlessthe statute created in its absence is legislation that Congresswould not have enacted,'" Roberts wrote, citing prior precedents.The court has ruled in the past, he said, such provisions wereseverable because the remaining provisions in an act were capableof functioning independently.

"So too here," Roberts wrote. "The provisions of the Dodd-FrankAct bearing on the CFPB's structure and duties remain fullyoperative without the offending tenure restriction."

Where there is an express severability clause, "there is no needto wonder" what Congress would have wanted if any provision if theact is found unconstitutional, he added. In the CFPB case, Robertswrote, the Dodd-Frank Act has such a clause.

"We think it clear that Congress would prefer that we use ascalpel rather than a bulldozer in curing the constitutional defectwe identify today," Roberts concluded.

In the robocall decision, Kavanaugh undertook a lengthyanalysis of severability in general. He noted that occasionally aparty will ask the court to override a severability ornonseverability clause on the ground that the text doesn't reflectCongress's "actual intent" on the issue.

SupremeCourt nominee Judge Brett Kavanaugh. Credit: Diego M. Radzinschi /NLJ

"That kind of argument may have carried some force back whencourts paid less attention to statutory text as the definitiveexpression of Congress's will," Kavanaugh wrote. "But courts todayzero in on the precise statutory text and, as a result, courts hewclosely to the text of severability or nonseverabilityclauses."

When a federal law has no clause, Kavanaugh added, there is a"strong" presumption of severability. As  Roberts wrote inSeila Law, Kavanaugh said courts in that situation ask whether theremainder of the law is capable of functioning independently and sois "fully operative" as a law. "But it is fairly unusual for theremainder of a law not to be operative," he wrote.

The Affordable Care Act does not include a severability clause.The Supreme Court has said it will decide if the amended mandateprovision is constitutional, and if it isn't, whether the provisionis severable from the act.

In the ACA case, the U.S. House, which intervened to defend thelaw along with California and a coalition of Democratic led states,argues that when Congressstripped the mandate to buy insurance (Section 5000A)  ofany force, it deliberately left the remainder of the act "intactand fully operative."

By leaving the remainder of the act intact, the House contends,"that is dispositive evidence of Congress's intent to retain therest of the Act even if Section 5000A were held to be without legaleffect as well. And even if Congress's intent were not so clear,the outcome of the severability analysis would be the same becausethe rest of the ACA can—and does—function without Section 5000A ina manner consistent with Congress's intent."

Related: 

• As coronavirus rages, Biden hits Trump over ACAchallenge
• How uncertainty over ACA is affecting healthcare
• AHIP president: Supreme Court will save most ofACA