Congratulations to Our Own Mark Movsesian and Keith Whittington, on Being Cited by Today's S. Ct. Decisions

|The Volokh Conspiracy |

Mark's Severability in Statutes and Contracts, 30 Ga. L. Rev. 41 (1995), was cited by the dissent in Barr v. Am. Ass'n of Political Consultants; Keith's Originalism, Constitutional Construction, and the Problem of Faithless Electors, 59 Ariz. L. Rev. 903 (2017), was cited by the Court's opinion in Chiafalo v. Washington. Nice!

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  1. Congratulations.

    I am curious as to the severability position being taken … it seems to be as Gorsuch and Thomas would abandon severability doctrine in favor of “declining to enforce the statute towards the parties in the case” which effectively does one of two things:

    1. There are endless future arguments as to who the statute actually applies to (the distinction between a facial and as applied challenge is blurred)
    2. Any statute which any provision that is unconstitutional, regardless of a severability statement in the bill (which this bill had), presumptively makes the entire law unconstitutional, which is a radical departure from the way things are done.

    Which makes me think, unless Gorsuch or Thomas want to engage with the standing argument, which they have never shown any interest in (18th century standing rules, or something) they will vote to overturn the ACA. Alito might tag along, so the votes are 6-3 keeping the law.

    The position makes a lot of sense, Gorsuch’s dissent articulated pretty well why severing the doctrine is a little weird here … the only people who can be affected aren’t actually involved in the case, which raises serious fair notice concerns and separation of power concerns.

    There is another approach than just striking down every statute, which is to dismiss cases like these on standing. What grounds exactly does the AAPC have to challenge the government debt exception? None. They aren’t affected by it. I know there is case law against that, and Sessions Morales says to level down … but I have always thought Thomas let his anti-immigrant bias cloud his decision making there, he probably could have made a successful standing claim there and brought the court to his view of equal protection standing.

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