In 2010, National Federation of Independent Business v. Sebelius came before the Supreme Court seeking to clarify key tenets of the Affordable Care Act (commonly known as Obamacare). First, the Court was called to decide whether or not Congress’s taxing and spending powers allowed it to constitutionally impose tax penalties on Americans who failed to purchase and maintain a minimum standard of healthcare (the “individual mandate”). The Court answered in the affirmative, reasoning that the cost would not be so high as to risk being coercive, and because the payment would be collected by the IRS, it would not be different from routine taxation. However, the truly interesting question in NFIB v. Sebelius went unanswered: Is individual mandate severable from the rest of the Affordable Care Act (ACA), or would the entire Act be stricken down if the mandate had been found to be unconstitutional? While Chief Justice John Roberts declined to take up the issue in his opinion for Sebelius, the question reared its head again in 2018 as the central question in Texas v. United States. 

The individual mandate lost its teeth by 2018; the ACA had by then been amended to change the payment requirements for the mandate to zero dollars. Even Texas, along with nineteen other states, once again challenged the constitutionality of the individual mandate — and won. The district court held that the entire Affordable Care Act could not stand without the mandate and rendered the Act null. This decision was held on appeal to the Fifth Circuit and finally appeared before the Supreme Court in November of 2020. The justices finally had to answer the question of severability, and with it, the question of the ACA’s continued existence as good law. 

The Court, however, once again slipped its way out of answering the question. The Court focused on whether or not the plaintiffs in Texas had standing to bring their case. In a 7-2 decision, the justices ruled that because the responsibility payment associated with the mandate had dropped to zero, there was no associated injury with noncompliance, so the individual mandate was unenforceable. 

If the Court had decided to engage with severability, how would they have ruled? How ought we to decide, when one part of a law is so inextricably bound to the rest, that one cannot stand without the other intact?

Reading between the lines of Sebelius, it is clear that Justice Roberts had some idea of how to approach severability questions. He notes, in dicta, that the “touchstone for any decision about remedy is legislative intent.” Lower courts may use dicta to aid in decisions, but the comments are not binding, nor do they count as precedent. Legislative intent, though, is an incredibly valuable lens through which to view the creation of individual mandate and its subsequent reduction in responsibility-payment. In 2017, when Congress amended the Affordable Care Act, they took care to simply remove the undesirable aspect of the law (the tax penalty associated with the mandate), not to strike down the entire ACA and rewrite a ‘better’ law. Clearly, they intended the law to stand, as written, without the individual mandate being enforceable. Therefore, Congress’s intent in both writing and amending the ACA was to set the individual mandate apart from the rest of the Act; from their perspective, that particular section could be edited to death without affecting the other provisions contained in the ACA.

But if Justice Roberts had an answer to this question in mind when referring to “legislative intent” in his dictum, why did the Court fail to provide a concrete answer to the questions in Texas and Sebelius, instead turning to the lower-impact argument regarding the specific wording of the mandate itself? A concrete answer, while potentially dipping into judicial activism, would have clarified a larger issue: not standing, but the role of individual parts in larger laws. While judicial bodies are only called to answer questions based on the facts of a particular case, the central issue in Sebelius was clearly whether or not the individual mandate was removable on its own; Texas would not  have come before the Court if severability wasn’t the central question left unanswered. Roberts could have provided some guidance on making the distinction between an inextricably bound-up section without which a law cannot stand and a dangling mandate that can be neatly cleaved off to reveal a stronger law. Congress’s intention was to simply bleed the individual mandate of its penalty-setting power, making it functionally not a part of the ACA after the amendment. This did not affect the enforceability of the rest of the law. Clearly, then, the mandate was severable. Resting on standing to deliver an opinion in Texas was a cop-out. In avoiding the new and relevant legal question that arose with Sebelius and extended into Texas, the Court failed to deliver guidance for future severability cases, leaving a gap in precedent and nowhere but dicta to turn for answers.

One objection is that demanding an opinion not absolutely necessary to resolve a certain case is dangerous and ignores the principle of judicial restraint. My intent, however, is not to advocate a new era of judicial activism. I am only passing judgment on Sebelius and Texas, two versions of the same case in which the severability of the ACA’s individual mandate was the central issue. Given that it came before the Court twice, it seems apparent that official guidance would not have been overstepping bounds into inappropriate judicial activism. In these cases, answering the severability question could not be considered legislating from the bench; it would simply be answering an asked question. For this reason, it would not set a bad precedent nor encourage judges to expand the scope of their opinions too far. The courts exist to give sound and binding guidance on issues central to a case’s existence.

Given that the Supreme Court did not pass an official opinion on severability, I still believe that Roberts’s comment about legislative intent might have served a similar purpose in Texas that stare decisis serves in other cases. I do not claim that dicta ought to be legally binding—there is a reason why those remarks are not written into the opinion itself—but that dicta should come under consideration in unanswered questions like the issue of severability. The district court and the Fifth Circuit no doubt referred to the opinion in Sebelius while deciding the results of Texas. Once they had determined their belief that plaintiffs did, in fact, have standing, they should have considered Roberts’ discussion of legislative intent when answering the question of whether or not the individual mandate was inextricably linked with the rest of the Affordable Care Act. 

The Fifth Circuit remanded the severability question back to the district court, ordering them to find more evidence supporting a claim of unbreakable linkage between all provisions of the ACA. This means the lower court had two chances to refer to Sebelius and follow the Chief Justice’s recommendation to consider legislative intent in deciding the answer; the district judge did not in either case. While dicta are obviously not binding precedent, the lack of other guidance should have led the lower court judges in Texas to at least consider why Roberts mentioned legislative intent. The outcome of failing to do so was a case that lacked standing making its way up to the Supreme Court. Essentially, dicta are not opinions, but they are akin to advice from a higher-ranking judge and deserve the same respect that you or I might afford to a boss’s suggestion at work. The case would not have required an appeal, remanding back to the district court, another appeal, and a Supreme Court opinion that boiled down to lack of standing if Roberts’s dictum had been given its due diligence. Time, money, and massive amounts of effort might have been saved. 

Texas is an example of the power of dicta and the consequences of ignoring it. I find the severability of the individual mandate to be the real lesson behind the case and the more important decision that ought to have been delivered in the Court’s opinion. It is true that plaintiffs lacked standing, but the question of severability and legislative intent remains unanswered and nebulous. We must hope future judges look more closely to dicta for guidance on this issue.