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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Does v. Wasden

Docket: 19-35391

Opinion Date: December 9, 2020

Judge: Kathleen Cardone

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

Plaintiffs, 134 men and women registered as sex offenders in Idaho, filed suit claiming that the retroactive application of Idaho's Sexual Offender Registration Notification and Community Right-to-Know Act (SORA) is unconstitutional. The district court granted defendants' motions to dismiss. The Ninth Circuit reversed in part, holding that the district court erred in dismissing the ex post facto claim on the basis that SORA was civil in intent and not punitive in effect. The panel explained that the district court erred by applying plaintiffs' ex post facto claim as an as-applied challenge; erred by applying the "clearest proof" standard at the motion to dismiss stage; and erred in finding the outcome of the Smith factors analysis controlled by precedent. Because the district court predicated its dismissal of the Eighth Amendment and double jeopardy claims on its dismissal of the ex post facto claim, the panel held that those judgments were also in error. The panel also held that the district court erred in dismissing plaintiffs' free exercise claim because the district court erred in finding that plaintiffs failed to allege sufficient facts to plead a plausible claim under Idaho's Free Exercise of Religion Protected Act (FERPA). In this case, plaintiffs have alleged facts showing that the challenged policy substantially burdens the exercise of their religious beliefs. The panel found no error in the district court's analysis of plaintiffs' vagueness, Free Association, Equal Protection, Contracts Clause, Takings, Separation of Powers, and state Police Power challenges. Therefore, the panel affirmed the dismissal of those claims. The panel remanded for further proceedings.

Doe v. CVS Pharmacy, Inc.

Docket: 19-15074

Opinion Date: December 9, 2020

Judge: Milan Dale Smith, Jr.

Areas of Law: Civil Rights, Constitutional Law, ERISA, Government & Administrative Law, Health Law

Plaintiffs, individuals living with HIV/AIDS who have employer-sponsored health plans, and who rely on those plans to obtain prescription drugs, filed suit alleging that CVS's program violates the anti-discrimination provisions of the Affordable Care Act (ACA), the Americans with Disabilities Act (ADA), and the California Unruh Civil Rights Act (Unruh Act); denies them benefits to which they are entitled under the Employee Retirement Security Act (ERISA); and violates California's Unfair Competition Law (UCL). The district court granted defendants' motion to dismiss. The Ninth Circuit held that Section 1557 of the ACA does not create a healthcare-specific anti-discrimination standard that allowed plaintiffs to choose standards from a menu provided by other anti-discrimination statutes. Because plaintiffs claim discrimination on the basis of their disability, to state a claim for a Section 1557 violation, they must allege facts adequate to state a claim under Section 504 of the Rehabilitation Act. Applying the section 504 framework, the panel concluded that plaintiffs adequately alleged that they were denied meaningful access to their prescription drug benefit under their employer-sponsored health plans because the program prevents them from receiving effective treatment for HIV/AIDS. Therefore, plaintiffs have stated a claim for disability discrimination under the ACA. However, plaintiffs have failed to establish a claim of disability discrimination under the ADA, because they have not plausibly alleged that their benefit plan is a place of public accommodation. Finally, the panel upheld the district court's denial of plaintiffs' claims under ERISA and their cause of action under California's Unfair Competition Law. The panel affirmed in part, vacated in part, and remanded.

Singh v. Barr

Dockets: 19-70932, 19-71025

Opinion Date: December 9, 2020

Judge: Jay S. Bybee

Areas of Law: Immigration Law

The Ninth Circuit dismissed, based on lack of jurisdiction under 8 U.S.C. 1252, petitions for review of the IJ's decisions concluding that petitioners lacked jurisdiction to reopen credible fear proceedings under 8 C.F.R. 1208.30(g)(2)(iv)(A). The panel first observed that judicial review of an expedited removal order, including the merits of a credible fear determination, is expressly prohibited by section 1252(a)(2)(A)(iii). The panel then recognized that it has routinely exercised jurisdiction under section 1252 to review IJ denials of motions to reopen certain removal proceedings. However, the panel concluded that the language of section 1252 clearly and convincingly demonstrates that Congress intended to circumscribe judicial review of motions to reopen credible fear determinations. In this case, petitioners repeatedly stress that they are not asking the panel to review the merits of the IJs' credible fear determinations. Instead, petitioners ask the panel to exercise jurisdiction to review the IJs' denials of motions to reopen on the grounds that the IJs misconstrued their authority to do so under section 1208.30(g)(2)(iv)(A). This the panel cannot do. The panel has held that where Congress explicitly withdraws its jurisdiction to review a final order of deportation, its authority to review motions to reconsider or to reopen deportation proceedings is thereby likewise withdrawn. Read together, sections 1252(a)(2)(A), (D) and 1252(e) provide clear and convincing evidence that Congress intended to deprive circuit courts of appeals of jurisdiction to review expedited removal orders and related matters affecting those orders, including underlying negative credible fear determinations and rulings on the regulations implementing the expedited removal statute. The panel was without jurisdiction to review the petitions for review and rejected petitioners' remaining arguments to the contrary.