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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United States v. Taylor

Docket: 19-12872

Opinion Date: December 9, 2020

Judge: Grant

Areas of Law: Criminal Law

Taylor pled guilty to conspiracy to possess with intent to distribute at least five kilograms of a mixture containing a detectable amount of cocaine hydrochloride (powder cocaine) and at least 50 grams of a mixture containing a detectable amount of cocaine base (crack cocaine), 21 U.S.C. 846, 841(b)(1)(A)(ii), and 841(b)(1)(A)(iii). Section 841(b) then provided that an offense involving either 50 grams or more of crack or five kilograms or more of powder cocaine carried a mandatory minimum of 10 years’ imprisonment and a maximum of life in prison. The court calculated Taylor’s Guidelines range as life in prison and “reluctantly” applied the Guidelines as mandatory. The Eleventh Circuit vacated. On remand, in 2005, the district court resentenced Taylor to 360 months’ imprisonment. The 2010 Fair Sentencing Act increased the quantity of crack cocaine required to trigger a 10-year mandatory minimum from 50 grams to 280 grams. The 2018 First Step Act allows—but does not require—courts to reduce an eligible prisoner’s sentence as if the drug-quantity changes were in effect at the time the prisoner committed his offense. The district court denied Taylor’s motion for resentencing, finding that Taylor’s was not a “covered offense” because it involved five kilograms or more of powder cocaine, “a sufficient quantity to trigger the mandatory minimum sentence.” The Eleventh Circuit vacated. A federal drug crime involving both crack cocaine and another controlled substance can be a “covered offense” under the First Step Act.