Sen. Dianne Feinstein, the panel’s top Democrat, asked Judge Amy Coney Barrett about the legal doctrine of “severability,” or whether the entire law can stand if one part of it is deemed illegal, during Barrett’s second day of questions before the Senate Judiciary Committee today.
It’s a concept that could play a key factor in the case from Republican attorneys general and the Trump administration seeking to strike down the Affordable Care Act case next month, arguing that the entire law should be struck down because the law’s individual coverage mandate is unconstitutional.
Barrett explained to Feinstein, a California Democrat, that severability was like a game of “Jenga.”
“If you picture severability being like a Jenga game, it’s kind of like, if you pull one out, can you pull it out while it all stands? If you pull two out, will it all stand?” Barrett said. “Severability is designed to say well would congress still want the statute to stand even with the provision gone?”
Senate Judiciary Chair Lindsey Graham, during his questioning of Barrett, seemed to suggest he thought that the Affordable Care Act could be saved because of severability, saying the doctrine’s “goal is to preserve the statute if that is possible.”
This was their exchange:
“From a conservative point of view, generally speaking, we want legislative bodies to make laws, not judges,” Graham said, before asking Barrett, “Would it be further true, if you can preserve a statue you try to, if possible?”
“That is true,” Barrett said.
“That’s the law folks,” Graham responded.
Graham, who is facing a tough reelection fight, nevertheless launched into another attack on former President Barack Obama’s signature health care law, saying, “Obamacare is on the ballot.”