Severability in Larger Constitutional Context: Part Five in our Series on the California v. Texas Challenge to the Affordable Care Act

VIKRAM DAVID AMAR, EVAN CAMINKER, JASON MAZZONE

In this fifth of a series of columns examining the California v. Texas case challenging the Affordable Care Act (ACA), Illinois law dean Vikram David Amar, Michigan Law dean emeritus Evan Caminker, and Illinois law professor Jason Mazzone discuss severability in a larger context and explain why, in their view the majority and minority positions are partly right and partly wrong. The authors conclude that if the Court invalidates and enjoins the individual mandate, it should reject the challengers’ substantive express inseverability claim that the entire ACA remainder should be enjoined.

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Petition of New Hampshire Division for Children, Youth and Families

Docket: 2020-0110

Opinion Date: December 9, 2020

Judge: Gary E. Hicks

Areas of Law: Civil Procedure, Family Law, Government & Administrative Law

The New Hampshire Division for Children, Youth and Families (DCYF) petitioned the New Hampshire Supreme Court for a writ of prohibition to prevent a circuit court from joining DCYF as a party to an ongoing guardianship case and from ordering the agency to provide services for the benefit of private litigants. This petition arose from a guardianship case involving an ongoing dispute between the father of a three-year-old child and the child’s guardians, who were the child’s maternal grandparents. The father alleged the child’s guardians were willfully interfering with his rights to unsupervised parenting time and notice of his child’s medical appointments as established by previous court orders. The circuit court credited the father’s allegations and expressed concern that the case “has not progressed” since the last hearing in September 2018. The trial court was ordered to provide services on a weekly basis to father, and joined DCYF as a party to the case. DCYF contended the circuit court lacked the authority to join the agency to the private case because no statute authorized the circuit court to do so. The Supreme Court agreed and, accordingly, granted DCYF’s petition for a writ of prohibition.

New Hampshire v. Gates

Docket: 2019-0371

Opinion Date: December 9, 2020

Judge: James P. Bassett

Areas of Law: Constitutional Law, Criminal Law

Defendant John Gates appealed his convictions for arson, attempted arson, two counts of burglary, being a felon in possession of a dangerous weapon, and use of a Molotov cocktail. He challenged a superior court order denying his motion to suppress evidence obtained when, without a search warrant, the police entered the vestibule and utility closet of his apartment building located on his family’s farm. At trial court, defendant argued that the warrantless search violated his rights under Part I, Article 19 of the New Hampshire Constitution and the Fourth Amendment to the Federal Constitution. The trial court applied the two-part framework established in New Hampshire v. Goss, 150 N.H. 46 (2003), which provided that, for a warrantless search to be unlawful, an individual must have a legitimate expectation of privacy — both subjective and objective — in the place searched. The trial court found that defendant lacked a legitimate expectation of privacy in both the vestibule and the utility closet and concluded that the officers’ warrantless entry into those areas was lawful. On appeal, defendant argued the trial court's conclusions was wrong as to both rulings. Because the New Hampshire Supreme Court agreed with defendant that, under Part I, Article 19 of the State Constitution, he had a legitimate expectation of privacy in the utility closet, judgment was reversed and the matter remanded for further proceedings.