The Volokh Conspiracy
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Severability Doctrine in the Fifth Circuit
At least two judges favor Justice Thomas's approach to severability
Last month the en banc Fifth Circuit decided Collins v. Mnuchin. The majority opinion, by Judge Willett, found that the Federal Housing Finance Agency was unconstitutionally structured. This agency was headed by a single director, who could only be removed "for cause." However, the court divided on the remedy. Judge Haynes, joined by (my count) nine other justices, struck down the "for cause" provision, and severed the remainder of the statute:
When addressing the partial unconstitutionality of a statute such as this one, we seek to honor Congress's intent while fixing the problematic aspects of the statute. Thus, in this case, the appropriate—and most judicially conservative—remedy is to sever the "for cause" restriction on removal of the FHFA director from the statute.
Judge Oldham, joined by Judge Ho, disagreed with this analysis.
First, they explained that courts do not "strike" down laws. Really, they don't. I cringe whenever anyone uses this phrase. It is simply incorrect, and maintains an inaccurate description of what courts do. Rather, Oldham and Ho favor the framework advanced by Justice Thomas in Murphy v. NCAA.
The second problem we have with the remedy endorsed by a majority of our Court is that we do not believe Article III of the Constitution permits us to "strike" the FHFA Director's for-cause protection from the statute. See Murphy v. NCAA, 138 S. Ct. 1461, 1485 (2018) (Thomas, J., concurring) (explaining that "[e]arly American courts did not have a severability doctrine" because "[t]hey recognized that the judicial power is, fundamentally, the power to render judgments in individual cases").
Second, Oldham and Ho recount that the Framers expressly rejected a "Council of Revision" during the Constitutional Convention. Instead, our courts can only decide "cases" and "controversies" between parties. They cannot, to use Jonathan Mitchell's phraseology, employ a "writ of erasure."
In the final Constitution, the judiciary was given only the power to decide cases and controversies—to resolve legal disputes between parties and order remedies to redress injuries. Thus, when a court concludes that a statute is unconstitutional, it is not "striking down" or "voiding" or "invalidating" the law. It is merely holding that the law may not be applied to the parties in the dispute. The Constitution does not empower courts to delete sections of state and federal codes. The Founders expressly considered the possibility of a judicial veto, and they rejected it multiple times during the Constitutional Convention.
Who then do we blame for the myth that courts can "strike down" laws? Who else? John Marshall.
This history has been obscured by rhetoric that Chief Justice Marshall used in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), to explain judicial review. In that case he famously declared that a statute found unconstitutional by a court becomes "entirely void," "invalid," and "not law." Id. at 177–78. Subsequent cases have compounded the confusion. See, e.g., The Civil Rights Cases, 109 U.S. 3, 26 (1883) (holding "void" sections 1 and 2 of the Civil Rights Act of 1875). Nevertheless, it is indisputable that courts do not have the power to erase duly enacted statutes. Instead, they may decline to enforce them or enjoin their future enforcement to resolve cases and controversies.
The second citation to the Civil Rights Cases is especially apt. That infamous decision held that Congress could not use its Section 5 powers to prohibit privately enforced of segregation in hotels and theaters. But what about publicly enforced segregation, like the Jim Crow law at issue in Plessy. This law was certainly preempted by the Civil Rights Act of 1875. But the Plessy Court bought into the fiction of judicial supremacy. It held that the Civil Rights Act of 1875 was "unconstitutional and void." Therefore, the state law was not preempted. Even those unsympathetic to Oldham and Ho's general world view should recognize the role that the "striking down" fiction played in Plessy.
Third, Oldham and Ho suggested that the Fifth Circuit should not perpetuate this confusion:
Our Court should not add to the confusion about the judiciary's limited powers by claiming to "sever" a statute based on open-ended speculation about how Congress would have solved the separation-of-powers problem. And we certainly should not rewrite the statute while pretending such legislative activity is the most modest judicial remedy. We would instead remand to the district court with instructions to fashion a remedy that actually redresses Plaintiffs' harms.
There was some discussion on Twitter that Oldham and Ho proposed declaring the entire statute unconstitutional. To the contrary. Oldham and Ho preferred a remand to determine which portions of the law actually injure the Plaintiffs. Only those provisions can be enjoined.
The Department of Justice took this same position in the Affordable Care Act case. (Many people, present company company included, erroneously contended that the government favored setting aside the entire law.) The final sentence of the government's brief explained the position: "Accordingly, the court's judgment should be affirmed on the merits, except insofar as it purports to extend relief to ACA provisions that are unnecessary to remedy plaintiffs' injuries."
And the government reiterated this position during oral arguments. Attorney August Flientje explained:
Flientje: We think it is an Article III issue, so yes we did raise it in our brief for the first time, we do think, given that, it would be appropriate to remand to consider the scope of the judgment on that point. We think that's more of a technical point, because the severability analysis requires looking at the statute altogether. Obviously, there is precedential impact of this court's decision or a higher court's decision that could make a lot of sorting out those details unnecessary down the road.
If DOJ is correct, then the correct remedy after a declaration of inseverability is a district court proceeding to determine what provisions injure the individual Plaintiffs.
Judge Elrod explored this point in a colloquy with Douglas Letter, the lawyer for the House (at 1:41:30):
Judge Elrod: If we held, hypothetically, that it was severable, we would say the district court, do your best severability in the first instance, take out your blue pencil.
Letter: No, you [that is the 5th Circuit] would do that.
Judge Elrod: Why would we do that? In any other normal case, you would send it back to the district in the first instance to make its best stab at trying to implement the ruling that we made. That would be the normal proceeding in hundred cases that we have this month
Judge Elrod had a similar colloquy with Kyle Hawkins, the Texas Solicitor General:
Judge Elrod: If the court ruled on the partial summary judgment, and then you have to go back for the relief, the remedy has not been spoken of yet
Hawkins: That's right. We will go back to district court.
Judge Elrod: You're not to that process yet. You have a partial summary judgment.
Judge Elrod appears to be on the same page as Judges Oldham and Ho. They recognize that under Justice Thomas's approach to severability, the district court can only enjoin those provisions that in fact injure the Plaintiffs.
