Democratic California Sen. Dianne Feinstein said she was “really impressed” with Judge Amy Coney Barrett’s definition of “severability” during a discussion about the Affordable Care Act (ACA) at Wednesday’s Senate Judiciary Committee confirmation hearings.
Barrett likened the concept to a Jenga game where the question becomes, “if you pull one out, can you pull it out while it all stands?”
She went on to explain that, while Scalia believed pulling both the Medicaid provision and the individual mandate out would make the law fall, the upcoming case only deals with the individual mandate.
Asked by Feinstein what she thought of severability in general, Barrett said it “serves a valuable function of trying not to undo your work when you wouldn’t want a court to undo your work.”
“Severability strives to look at a statute as a whole and say, ‘would Congress have considered this provision so vital that, kind of in the Jenga game, pulling it out, Congress wouldn’t want the statute anymore?’ So it’s designed to