IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

_______________________________________

)

STATE OF FLORIDA, by and )

through BILL MCCOLLUM, et al., )

)

Plaintiffs, )

)

v. ) Case No. 3:10−cv−91−RV/EMT

)

UNITED STATES DEPARTMENT OF )

HEALTH AND HUMAN SERVICES, et al., )

)

Defendants. )

_______________________________________)

BRIEF OF THE FAMILY RESEARCH COUNCIL AS AMICUS CURIAE 

SUPPORTING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

KENNETH A. KLUKOWSKI

(Indiana Bar No. 28272−06)

Counsel of Record

FAMILY RESEARCH COUNCIL 

801 G Street N.W.

Washington, D.C. 20001-3729

Phone (202) 393-2100

Facsimile (202) 393-2134

Attorney for Amicus Curiae Family Research Council

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TABLE OF CONTENTS

TABLE OF AUTHORITIES.... ...................................................................ii

INTEREST OF AMICUS CURIAE... .............................................................1

ARGUMENT..........................................................................................1

I. SEVERABILITY CONSIDERS WHETHER THE UNCONSTITUTIONALITY OF ONE STATUTORY 

PROVISION INVALIDATES THE ENTIRE STATUTE................................................2

II. THE TWO-PART TEST FOR DETERMINING WHETHER AN UNCONSTITUTIONAL STATUTORY 

PROVISION IS SEVERABLE FROM THE REMAINDER OF THE STATUTE EXAMINES BOTH

FUNCTIONALITY AND CONGRESSIONAL INTENT............................................... 4

A. The functionality prong is a judicial inquiry, but also one that infers intent.........5

B. The presumption of severability is weakened by the absence of a severability 

clause..........................................................................................6

C. The principles underlying severability renders a provision nonseverable if 

Congress would not have enacted the statute absent the challenged provision......7

III. THE TEXT OF ACA AND DEFENDANTS‟ ADMISSIONS IN THIS CASE MAKE 

INDISPUTABLY CLEAR THAT THE INDIVIDUAL MANDATE CANNOT BE SEVERED 

FROM THE STATUTE..............................................................................8

A. Defendants admit the Individual Mandate is not severable from ACA...............8

B. The Individual Mandate is also not partially severable from ACA, as such a 

holding would effectively rewrite the statute...........................................10

IV. THIS COURT COULD HOLD THE INDIVIDUAL MANDATE NONSEVERABLE FROM THE 

REMAINDER OF ACA WITH ONLY LIMITED IMPLICATIONS FOR OTHER CASES............11

CONCLUSION......................................................................................12

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TABLE OF AUTHORITIES

CASES

Ala. Power Co. v. United States Doe, 307 F.3d 1300 (11th Cir. 2002)....................... 5

Alaska Airlines, Inc. v. Brock, 480 U.S. 678 (1987)................................... 5, 5−6, 6

Ayotte v. Planned Parenthood, 546 U.S. 320 (2006).............................. 2, 7, 7−8, 11

Brockett v. Spokane Arcades, Inc., 472 U.S. 491 (1985)....................................... 2

Champlin Refining Co. v. Corporation Comm’n of Okla., 286 U.S. 210 (1932)............ 2

Florida v. U.S. HHS, 

2010 U.S. Dist. LEXIS 111775 (N.D. Fla. Oct. 14, 2010)..................... 9, 9−10, 10

Free Enterprise Fund v. Public Co. Accounting Oversight Board, 

130 S. Ct. 3138 (2010)..................................................... 3, 4, 4−5, 5, 10, 11

INS v. Chadha, 462 U.S. 919 (1983)........................................................... 6, 8

New York v. United States, 505 U.S. 144 (1992)................................................ 5

United States v. Booker, 543 U.S. 220 (2005).................................................. 10

United States v. Romero-Fernandez, 983 F.2d 195 (11th Cir. 1993)...................... 2, 5

United States v. Treasury Employees, 513 U.S. 454 (1995).................................... 7

Virginia v. American Booksellers Ass’n, Inc., 484 U.S. 383 (1988).......................... 7

STATUTES

Patient Protection and Affordable Care Act, Pub. L. 111−148, 124 Stat. 119 (2010)...... 9

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INTEREST OF AMICUS CURIAE

Founded in 1983, the Family Research Council (“FRC”) is a 501(c)3 nonprofit 

public-policy organization headquartered in Washington, D.C., that exists to develop and 

analyze governmental policies that affect families in the United States.1 As described in 

our motion for leave to file this brief and for the reasons set forth therein, various 

provisions of the statute challenged in this case are detrimental to family interests and 

religious liberty. These provisions are nonseverable from the provisions of the Act

challenged by the Plaintiffs in this litigation, and thus faith and family interests will be 

advanced should this Court find either of the challenged provisions both unconstitutional 

and nonseverable, thus invalidating this statute in its entirety. 

ARGUMENT

Amicus Curiae Family Research Council supports Plaintiffs‟ position, in that FRC 

believes the Individual Mandate to be unconstitutional and that the sweeping Medicaid 

changes represent an impermissible expansion of federal power. FRC also joins 

Plaintiffs‟ arguments that these provisions are nonseverable from the remainder of the 

Act. Given the complexity and underdeveloped state of severability doctrine, FRC 

presents the following discussion of severability doctrine to inform this Court‟s 

deliberations by supplementing the arguments made in the Plaintiffs‟ briefs on this issue. 

This amicus brief argues why the minimum essential coverage provision found in § 

1501 of the Patient Protection and Affordable Care Act (“ACA”)—the “Individual 

 

1

Amicus Curiae Family Research Council has no parent company and no subsidiary. It 

has issued no stock and has no public debt, and no company owns 10% or more of FRC. 

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Mandate” or “Mandate”—cannot be severed from the remainder of the Act, such that this 

Court cannot invalidate the Mandate while preserving the other provisions of the statute. 

I. SEVERABILITY CONSIDERS WHETHER THE UNCONSTITUTIONALITY OF ONE

STATUTORY PROVISION INVALIDATES THE ENTIRE STATUTE.

Severability doctrine is comprised of the rules by which a court can invalidate one 

provision of a statute while preserving the remainder intact. “The unconstitutionality of a 

part of an Act does not necessarily defeat or affect the validity of its remaining 

provisions.” Champlin Refining Co. v. Corporation Comm’n of Okla., 286 U.S. 210, 234 

(1932). In some—but not all—circumstances, it enables a court to surgically excise an 

unconstitutional provision from a statute without doing violence to the remainder of the 

Act. “If an unconstitutional [provision] of a statutory scheme is severable . . . we will not 

invalidate the entire scheme.” United States v. Romero-Fernandez, 983 F.2d 195, 196 

(11th Cir. 1993).

Severability is fundamentally a doctrine of judicial restraint. “Generally speaking, 

when confronting a constitutional flaw in a statute, we try to limit the solution to the 

problem.” Ayotte v. Planned Parenthood, 546 U.S. 320, 328 (2006). Because:

[a] ruling of unconstitutionality frustrates the intent of the elected representatives 

of the people, the normal rule is that partial, rather than facial, invalidation is the 

required course, such that a statute may . . . be declared invalid to the extent that it 

reaches too far, but otherwise left intact.

Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 504 (1985) (internal citation omitted). 

The question of severability is a judicial inquiry of two alternatives regarding the 

nature of a statute. One possibility is that Congress intended a given statute as a bundle of 

separate legislative embodiments, which for the sake of convenience, avoiding 

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redundancy, and contextual application, are bundled together in a single legislative 

enactment. This makes a statute a series of short laws, every one of which is designed to 

stand alone, if needs be. The second possibility is that a given statute embodies a 

carefully-balanced legislative deal, in which Congress weighs competing policy 

priorities, and through negotiations and deliberation crafts a package codifying this 

delicate balance. Congress is thus not voting for separate and discrete provisions. Instead, 

Congress is voting on a package as a whole, any modification of which could result in the 

bill failing to achieve passage in Congress. As both Plaintiffs‟ briefs and the following 

argument shows, the Individual Mandate falls within the latter category, not the former. 

Defendants may oppose Plaintiffs‟ severability argument by quoting, “Because the 

unconstitutionality of part of an Act does not necessarily defeat or affect the validity of 

its remaining provisions, the normal rule is that partial, rather than facial, invalidation is 

the required course.” Free Enterprise Fund v. Public Co. Accounting Oversight Board, 

130 S. Ct. 3138, 3161 (2010) (internal quotation marks omitted). If made, this argument 

misses the point entirely. The second clause, stating that partial invalidation is often 

required, is premised on the first clause, that this general rule exists because for most 

statutes, invalidity of one provision “does not necessarily . . . affect the validity of its 

remaining provisions.” But Plaintiffs‟ position—which FRC supports—is that striking 

down the Mandate would profoundly affect the validity of many of ACA‟s provisions. 

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II. THE TWO-PART TEST FOR DETERMINING WHETHER AN UNCONSTITUTIONAL 

STATUTORY PROVISION IS SEVERABLE FROM THE REMAINDER OF THE STATUTE 

EXAMINES BOTH FUNCTIONALITY AND CONGRESSIONAL INTENT.

The Supreme Court‟s most recent substantive application of severability doctrine was 

earlier this year in a case challenging the constitutionality of Sarbanes-Oxley, a federal 

statute regulating the accounting industry. See id. at 3147. In that case the Court 

invalidated a scheme whereby the members of the Act‟s oversight board were only 

removable for cause by the Securities and Exchange Commission, the members of which 

themselves in turn can only be removed for cause by the President, creating a double 

layer of protection against presidential action. Id. at 3151. Since Sarbanes-Oxley lacked a 

severability clause, the Court considered the issue of severability. Id. at 3161−62.

Free Enterprise Fund employed a two-part inquiry: First, the remainder of the statute 

must continue to be “fully operative as a law” absent the invalid provision. Id. at 3161 

(citations omitted). If the remainder is fully operative, the second step is to uphold the 

truncated statute “unless it is evident that the Legislature would not have enacted those 

provisions ... independently of that which is invalid.” Id. (citation omitted). 

The Court‟s methodology in reviewing Sarbanes-Oxley confirms this two-step 

approach. After discussing how the functioning of the public board at issue in that case 

would continue unaffected by invalidating the removal mechanism of board members, the 

Court concluded that the “Act remains „fully operative as a law‟ with these tenure 

restrictions excised. “ Id. at 3161 (quotations omitted). The Court then continued, “We 

therefore must sustain its remaining provisions „[u]nless it is evident that the Legislature 

would not have enacted those provisions which are within its power, independently of 

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that which is not.‟” Id. (quoting New York v. United States, 505 U.S. 144, 186 (1992)) 

(brackets in the original). The Court then took each step in turn. The Court first held that 

the remainder of the statute was capable of functioning independently of the invalid 

provision, and then added that both the statutory text and historical context did not 

indicate Congress would have preferred the entire statute to fail. Id. at 3162. Thus the 

Court begins by inquiring whether the Act would still be fully operative. If operative, 

then the Court proceeds to the second step of determining legislative intent. 

A. The functionality prong is a judicial inquiry, but also one that infers intent.

The first part of a severability inquiry requires evaluating the remaining provisions of 

the statute. “In determining whether to sever a constitutionally flawed provision, courts 

should consider whether the balance of the legislation is incapable of functioning 

independently.” Romero-Fernandez, 983 F.2d at 196. This question flows into intent, 

since “[t]he presumption raised by a severability clause, then, is that Congress desires to 

save as much of the Act as possible.” Ala. Power Co. v. United States Doe, 307 F.3d 

1300, 1307 (11th Cir. 2002). This stems from the fact that “Congress could not have 

intended a constitutionally flawed provision to be severed from the remainder of the 

statute if the balance of the legislation is incapable of functioning independently.” Alaska 

Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987). 

Federal Defendants mischaracterize controlling precedent if they suggest that this 

Court should inquire into whether the remaining provisions of ACA would be literally 

unable to function without the Individual Mandate. “The more relevant inquiry in 

evaluating severability is whether the statute will function in a manner consistent with the 

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intent of Congress.” Id. at 685. Thus even the first aspect of a severability inquiry 

requires this Court to infer Congress‟ intent. 

B. The presumption of severability is weakened by the absence of a severability 

clause.

All statutes entail a presumption of severability, but the strength of that presumption 

is set by the presence of a severability clause. In INS v. Chadha, the Court declared that 

the presence of a severability clause impacted the threshold that must be met, holding that 

if a clause‟s “language is unambiguous [it] gives rise to a presumption that Congress did 

not intend the validity of the Act as a whole” to hang on the validity of one provision. 

462 U.S. 919, 932 (1983). Thus, “Congress could not have more plainly authorized the 

presumption that the provision . . . is severable from the remainder of the . . . the Act” 

than by inserting an unambiguous severability clause. Id.

The Court later made clear that this presumption weakens without such a clause:

The inquiry is eased when Congress has explicitly provided for severance by 

including a severability clause in the statute. This Court has held that the inclusion 

of such a clause creates a presumption that Congress did not intend the validity of 

the statute in question to depend on the validity of the constitutionally offensive 

provision. In such a case, unless there is strong evidence that Congress intended 

otherwise, the objectionable provision can be excised from the remainder of the 

statute. In the absence of a severability clause, however, Congress‟ silence is just 

that—silence—and does not raise a presumption against severability. 

Alaska Airlines, 480 U.S. at 686 (internal citations omitted). In holding that the judicial 

inquiry is “eased” by the presence of a severability clause, such that only “strong” 

evidence of congressional intent against severability can overcome the presumption, 

conversely the inquiry is more demanding absent a severability clause, and the evidence 

of legislative intent that the challenged provision cannot be severed need not be as strong. 

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C. The principles underlying severability renders a provision nonseverable if 

Congress would not have enacted the statute absent the challenged provision.

The Supreme Court recently clarified the rationale underlying severability doctrine:

Three interrelated principles inform our approach to remedies. First, we try not to 

nullify more of a legislature‟s work than is necessary . . . . Second, mindful that 

our constitutional mandate and institutional competence are limited, we restrain 

ourselves from rewriting [a] law to conform it to constitutional requirements even 

as we try to salvage it. . . . Third, the touchstone for any decision about remedy is 

legislative intent, for a court cannot use its remedial powers to circumvent the 

intent of the legislature. 

Ayotte, 546 U.S. at 329−30 (brackets and citations omitted). While the first principle is 

more a statement of general judicial policy, the second two control the instant case.

The Supreme Court elaborated on the second principle in Ayotte thus:

Second, mindful that our constitutional mandate and institutional competence are 

limited, we restrain ourselves from “rewrite[ing] [a] law to conform it to 

constitutional requirements” even as we try to salvage it. Virginia v. American 

Booksellers Ass’n, Inc., 484 U.S. 383, 397 (1988). Our ability to devise a judicial 

remedy that does not entail quintessentially legislative work often depends on 

how clearly we have already articulated the background constitutional rules at 

issue . . . But making distinctions in a murky constitutional context, or where linedrawing is inherently complex, may call for a “far more serious invasion of the 

legislative domain” than we ought to undertake. [United States v. Treasury 

Employees, 513 U.S. 454, 479 n.26 (1995)]. 

Id. at 329−30. Thus, the Court reasoned that surgical actions to cleanly remove 

unconstitutional provisions are one thing, but having to rebalance a statutory scheme 

becomes a “far more serious invasion,” and is impermissible. 

This relates to the third principle, which the Court expounded as follows:

Third, the touchstone for any decision about remedy is legislative intent, for a 

court cannot “use its remedial powers to circumvent the intent of the legislature.” 

After finding an application or portion of a statute unconstitutional, we must next 

ask: Would the legislature have preferred what is left of its statute to no statute at 

all? All the while, we are wary of legislatures who would rely on our intervention, 

for “[i]t would certainly be dangerous if the legislature could set a net large 

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enough to catch all possible offenders, and leave it to the courts to step inside” to 

announce to whom the statute may be applied. “This would, to some extent, 

substitute the judicial for the legislative department of the government.”

Id. at 330 (internal citations omitted). This accords with Chadha:

The Court has held “that the invalid portions of a statute are to be severed [unless] 

it is evident that the Legislature would not have enacted those provisions which 

are within its power, independently of that which is not.

462 U.S. at 931−32 (internal quotations omitted) (brackets in the original).

III. THE TEXT OF ACA AND DEFENDANTS’ ADMISSIONS IN THIS CASE MAKE 

INDISPUTABLY CLEAR THAT THE INDIVIDUAL MANDATE CANNOT BE SEVERED 

FROM THE STATUTE.

Given the controlling precedents above, the question thus becomes this: Would 

Congress have enacted ACA with the massive financial consequences of people not being 

required to purchase health insurance to reduce the overall projected cost of ACA? As the 

price of the overall legislation increases dramatically by not having millions of younger, 

healthy individuals entering the risk pool, as well as losing the revenue from penalty fees, 

would the bill still have been able to pass? Given that the House vote on ACA was 

219−212, along with the public statements from various Members of Congress who 

indicated that the bill just barely fell under their absolute limit on costs, precedent 

counsels that ACA could not have been enacted without the Individual Mandate.2

A. Defendants admit the Individual Mandate cannot be severed from ACA.

 

2 Although some judges consult legislative history for congressional intent—while others 

reject that approach—that debate need not enter here. This Court need not go beyond the 

four corners of ACA‟s text. And to the extent this Court goes beyond the text to consult

Defendants‟ briefs in this case, it only serves to confirm the statutory text regarding 

congressional intent on the issue of severability. 

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ACA‟s provisions may still be individually operative as law without the Mandate. So 

we turn to the second step of a severability analysis, asking whether Congress intended 

ACA to function without the Mandate in a manner consistent with the overall scheme. 

In the section of ACA declaring the Individual Mandate, Congress expressly declares 

the necessity of the Individual Mandate to the statute, declaring:

[I]f there were no requirement, many individuals would wait to purchase health 

insurance until they needed care. By significantly increasing health insurance 

coverage, the requirement, together with the other provisions of this Act, will 

minimize this adverse selection and broaden the health insurance risk pool to 

include healthy individuals, which will lower health insurance premiums. The 

requirement is essential to creating effective health insurance markets . . . .

Pub. L. 111−148 § 1501 (a)(2)(G), 124 Stat. 119, 243 (2010) (emphasis added). 

Moreover, Federal Defendants concede that the Individual Mandate is essential to 

ACA as a whole, writing to this Court that “the minimum coverage provision is essential 

to the Act‟s comprehensive scheme to ensure that health insurance coverage is available 

and affordable. . . The provision works in tandem with these other reforms. . . .” Def. 

Mem. MTD at 46. They then reiterated that the Individual Mandate is necessary, 

admitting “Congress . . . rationally concluded that the minimum coverage provision is 

necessary to make the other regulations in the Act effective.” Id. at 48. 

Additionally, this Court has found that the Individual Mandate “is necessary, 

according to Congress and the defendants, to . . . meet „a core objective of the Act.‟” 

Florida v. U.S. HHS, 2010 U.S. Dist. LEXIS 111775, at *9 (N.D. Fla. Oct. 14, 2010) 

(order denying motion to dismiss in part and granting in part). This Court adds, “with 

respect to the individual mandate in particular, the defendants concede that it is

absolutely necessary for the Act‟s insurance market reforms to work as intended. In fact, 

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they refer to it as an „essential‟ part of the Act at least fourteen times in their motion to 

dismiss.” Id. at *72. This Court has thus definitively found that “Congress made factual 

findings in the Act and concluded that the individual mandate was „essential‟ to the 

insurance market reforms contained in the statute.” Id. at *111.

Therefore it is undisputed that the Mandate cannot be totally severed from ACA.

B. The Individual Mandate is also not partially severable from ACA, as such a 

holding would effectively rewrite the statute.

The next question therefore becomes whether at least part of ACA is severable from 

the Mandate. The purpose of partial invalidation is “to allow the statute to operate in a 

manner consistent with congressional intent.” United States v. Booker, 543 U.S. 220, 227

(2005). Yet the scheme embodied in ACA cannot function without the Mandate. 

It is crucially instructive here to note that the Supreme Court considered another 

remedy for the statute in Free Enterprise Fund. The Court could have struck down 

several provisions of Sarbanes-Oxley to downgrade the power of the challenged board 

until the appointees would no longer be officers of the United States subject to the 

Appointments Clause. The Court‟s response is on point here, in that the Court declined to 

embark upon such an endeavor, holding “such editorial freedom—far more extensive 

than our holding today—belongs to the Legislature, not the Judiciary. Congress of course 

remains free to pursue any of these options going forward.” 130 S. Ct. at 3162.

It is of course theoretically possible that this Court could salvage some of ACA‟s 450 

or so sections after striking down the Individual Mandate, thus finding the Mandate

partially severable from the remainder of the statute. But the unseemly image of this 

Court going line-by-line through a 2,700-page statute, invalidating hundreds of sections 

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but retaining dozens (or hundreds) of others, is the very picture of editorial “blue-pencil” 

strikethrough activity to effectively rewrite a statute that the Supreme Court declared 

inappropriately-invasive of Congress‟ domain as recently as this year. See id. This is 

rewriting a law in an attempt to salvage it, which is barred by Ayotte, 546 U.S. at 329−30. 

Such activity vests too much power in the judiciary, in that the reviewing court can weigh 

each provision according to the judge‟s personal preferences of social utility and policy 

balancing, invading Congress‟ domain and substituting the courts for Congress. See id.

Should this Court attempt to pursue partial severability, it is an endeavor which would 

doubtless consume many months. This Court would have to determine—for each and 

every provision of ACA—whether a given provision is sufficiently independent of the 

Individual Mandate that the provision could function in the manner Congress intended 

absent the Mandate. Such a determination would require extensive additional briefing, as 

this Court would require detailed assessments of various studies, reports, and committee 

hearings to have a basis upon which to determine Congress‟ policymaking priorities for 

the remaining sections. For this Court to hold the Mandate severable without such 

additional congressional evidence would necessarily require this Court to substitute its 

own policy priorities and personal predilections for those of Congress. 

IV.THIS COURT COULD HOLD THE INDIVIDUAL MANDATE NONSEVERABLE FROM THE 

REMAINDER OF ACA WITH ONLY LIMITED IMPLICATIONS FOR OTHER CASES.

The unusual facts of this case present an opportunity for this Court to hold the 

Individual Mandate nonseverable from ACA in a manner that has extremely limited 

implications beyond this litigation. Beyond simply lacking a severability clause, the 

statute affirmatively declares that the Mandate is essential to ACA, and in the record 

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Defendants reaffirm the necessity of the Mandate. Case law does not readily reveal a case 

before this Court or higher courts in which it was so clear that the challenged provision 

both lacked the protection of a severability clause and also was repeatedly emphasized in 

the statute‟s text and during litigation to be indispensable to the Act‟s proper functioning. 

When Congress includes a severability clause, it is evidence of congressional intent to 

sever a provision if necessary (although sometimes a provision cannot be severed even 

with this intent). When Congress does not include a severability clause, this silence still 

allows a presumption of implied severability. But in the instant case, beyond not inserting

severability, in the statute Congress affirmatively declares that the challenged provision is 

essential to the legislative package codified by the statute. This Court can therefore 

invalidate ACA in toto without ramifications for other statutes.

CONCLUSION

For the foregoing reasons, this Court should find the Individual Mandate 

nonseverable from the statute, and should invalidate the Act in its entirety. 

Respectfully submitted, 

s/ Kenneth A. Klukowski

KENNETH A. KLUKOWSKI

(Indiana Bar No. 28272−06)

Counsel of Record

FAMILY RESEARCH COUNCIL 

801 G Street N.W.

Washington, D.C. 20001-3729

Phone (202) 393-2100

Facsimile (202) 393-2134

 Attorney for Amicus Curiae 

 Family Research Council

November 19, 2010

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CERTIFICATE OF SERVICE

The undersigned counsel for Amicus Curiae hereby certifies that on this 19th day 

of November, 2010, a true and accurate copy of the foregoing Brief of the Family 

Research Council as Amicus Curiae Supporting Plaintiffs‟ Motion for Summary 

Judgment was filed with the Clerk of the U.S. District Court for the Northern District of 

Florida by being submitted the brief through the CM/ECF system, and thereby serving 

the brief on all counsel of record requiring service through the Court‟s Notice of 

Electronic Filing system. 

s/ Kenneth A. Klukowski

KENNETH A. KLUKOWSKI

(Indiana Bar No. 28272−06)

Counsel of Record

FAMILY RESEARCH COUNCIL 

801 G Street N.W.

Washington, D.C. 20001-3729

Phone (202) 393-2100

Facsimile (202) 393-2134

 Attorney for Amicus Curiae 

 Family Research Council

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