Supreme Court

Can Courts Consider Severability Before Other Questions?

An interesting amicus brief by Professor John Harrison in Seila Law LLC v. CFPB


Professor John C. Harrison of the University of Virginia School of Law has submitted an interesting amicus brief in Seila Law LLC v. Consumer Financial Protection Bureau, the blockbuster case before the Supreme Court challenging the constitutionality of the CFPB.

Whereas most of the amicus briefs in the case focus on the core constitutional question of whether the CFPB's structure is constitutional (and whether the Supreme Court should reconsider the constitutionality of independent agencies altogether), Professor Harrison's brief focuses on the question of severability—and not merely the substance of severability doctrine (which several other briefs address) but the sequence. Specifically, Professor Harrison argues that the Supreme Court may consider the question of severability before considering the constitutional question of whether the CFPB's structure violates separation-of-powers principles.

Here is the summary of his argument from his brief:

Court-appointed amicus recommends that the Court avoid the constitutional question on grounds of prudential ripeness. The Court can do that by considering the question of severability first, and, if it concludes that the CFPB's investigative authority is severable from the removal restriction, concluding that petitioner is not entitled to relief without reaching the constitutional issue. Petitioner's claim rests on inseverability: petitioner alleges that the removal restriction, to which it is not subject, is unconstitutional, not that the agency's investigative power, to which it is subject, is unconstitutional. The Court has prudential discretion to address those issues in either sequence, because both bear on the content of the rule of decision for this case. A court that decides a constitutional question is identifying the content of the applicable law, if necessary applying the principle that unconstitutional statutory rules are invalid. A court that decides a question of severability is construing the statute. It is identifying the application of the statute in light of a finding, or assumption for purposes of severability analysis, of unconstitutionality. In neither situation does the court apply a remedy in the sense of a judicial act that changes legal relations. Questions of severability can be described as questions of remedy in order to distinguish them from the constitutional questions with which they are connected. Courts do not, however, change the content of statutory law, either when they find a statutory rule unconstitutional or when they decide how much of a statute remains in place, or would remain in place, in light of partial unconstitutionality. Issues of severability thus arise in determining parties' primary legal relation, not in deciding on the remedy in the sense of a judicial act that changes those relations.

The idea that the Court could use severability as a way of avoiding the underlying constitutional question, and thereby issue a far narrower ruling, could well appeal to several of the justices. It also seems to me that Professor Harrison's point could also have interesting implications in other cases, such as the Texas v. United States case challenging the Affordable Care Act. In the Texas case, for instance, the Supreme Court could rule on the severability question without deciding whether the unenforced and unenforceable "individual mandate" is constitutional (and this might be an appealing way to address that case if the Court grants certiorari for next term).

In any event, I thought it was worth flagging Professor Harrison's brief because it presents an interesting perspective on an important question that often comes before the courts.

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  1. This blog is beginning to resemble a mutual aid society for right-wing law professors seeking attention, cites, judicial nominations, or job interviews.

    1. “Beginning to?”

      OT, has anyone seen Dale Carpenter? Was he swept up with Greenwald?

  2. So if I understand the argument then:

    1. If the statute is severable, then the remedy would be severing the statute, declaring only the irremovability of the Director unconstitutional, and declaring the Director removable.

    2. But this wouldn’t benefit the plaintiff in any way. The plaintiff would still be subject to investigation and penalties just as before, whether the director is removable or not.

    3. Therefore, if the statute is severable, the rest of the case becomes nonjusticable. Because the plaintiff couldn’t achieve any relief from a favorable decision, the plaintiff would lack an essential element of Article III standing to sue, so the case would need to be dismissed for lack of standing.

    Is this the argument as to why severability alone can be a basis for a decision that completely disposes of the case? The article uses very dense prose and never actually says says this. But it seems to be what the author is getting at.

    1. IIUC, if the statute is severable, then the plaintiffs aren’t entitled to a remedy, so there’s no need to decide if the director is removable.

  3. If that’s the argument, wouldn’t the Court be issuing an advisory opinion? It would be deciding a substantive question of constituional law in a case where the plaintiff lacks standing. Isn’t standing a fact that either exists or doesn’t? If the plaintiff lacks standing once a partial decision is made, didn’t the plaintiff always lack standing, and therefore didn’t the court always lack jurisdiction to have made that partial decisioj, rendering it void as beyond a federal court’s judicial power?

    If this is the argument, it seems to be a argument that the court has power to lift itself up by its own bootstraps. Doesn’t it have to first assure itself of jurisdiction before it can decide substantive legal questions? And doesn’t this mean the court lacks power to base whether its jurisdiction exists or not on the result of a substantial merits decision, even a partial one?

  4. I’m skeptical about using severability to assert no standing. Just because the CFPB may still have enforcement power if they lose would still mean that the enforcement power was being wielded by an unconstitutionally appointed officer. The reason the structure of the CFPB is a problem is because it is too far removed from proper political direction and control, that also makes it regulation and enforcement actions suspect.

    It would be like if Noel Canning were tossed on standing because the NLRB has the requisite enforcement power, even if it’s board was illegally appointed.

    1. New constitutional theory made up while u wait! Only here! Accept no inferior products! We have the best tools!

      Surely the SEC and FTC and Federal Reserve are way too far removed from “proper political direction and control,” right Vlad?

  5. Is this controversial? The Court considered severability first in INS v. Chadha, and only after a satisfactory resolution (in that case, that the operative clause was severable) did it reach constitutionality.

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