The Volokh Conspiracy
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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.