Despite its problems, the Fifth Circuit's severability analysis is a significant improvement over that of Judge O'Connor. While not resolving the question, it instructs O'Connor to focus on 2017 ACA - not 2010 - in conducting the analysis.
CA5 stresses "the need for a careful, granular approach" to severability analysis and notes it is "not persuaded that the approach to the severability question set out in the district court opinion satisfies that need."
Repeatedly in its severability discussion, CA5 emphasizes that Judge O'Connor failed to justify his conclusions on severability and did not explain why other provisions, including insurance market reforms, were inseverable.
CA5 tells O'Connor to "employ a finer toothed comb on remand" to examine which provisions are severable. In a FN, also tells O'Connor to consider Collins v. Mnuchin en banc decision.
From Judge Elrod's opinion: "The rule of law demands a careful, precise explanation of whether the provisions of the ACA are affected by the unconstitutionality of the individual mandate as it exists today."
And CA5 also notes district court must have opportunity to address DOJ severability arguments raised for the first time on appeal.
