The Volokh Conspiracy
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I have published four posts on Barr v. AAPC. The first considered judicial departmentalism. The second focused on content-based restrictions. The third analyzed stare decisis. And the fourth analyzed modern severability doctrine. This fifth installment focuses on the plurality's historical analysis of severability doctrine.
Justice Kavanaugh wrote the plurality opinion in Barr v. AADC. It was joined by Chief Justice Roberts and Justice Alito. The plurality purported to apply "ordinary severability principles." Justice Kavanaugh attempted to ground severability jurisprudence in Marbury v. Madison.
The Court's power and preference to partially invalidate a statute in that fashion has been firmly established since Marbury v. Madison. There, the Court invalidated part of §13 of the Judiciary Act of 1789. The Judiciary Act did not contain a severability clause. But the Court did not proceed to invalidate the entire Judiciary Act.
Justice Kavanaugh added:
Constitutional litigation is not a game of gotcha against Congress, where litigants can ride a discrete constitutional flaw in a statute to take down the whole, otherwise constitutional statute. If the rule were otherwise, the entire Judiciary Act of 1789 would be invalid as a consequence of Marbury v. Madison.
This argument is flawed. Let's briefly recall the facts of Marbury. William Marbury filed suit in the Supreme Court's original jurisdiction. Marbury sought a writ of mandamus to order James Madison, the Secretary of State, to deliver Marbury's commission. Marbury did not ask the Court to declare any law unconstitutional. He simply sought a remedy that was ostensibly provided for by Section 13 of the Judiciary Act of 1789. Chief Justice Marshall concluded that Section 13 purported to expand the Supreme Court's original jurisdiction. This, the Chief held, Congress could not do. Therefore, Section 13 was contrary to the Constitution. And, the Court could not issue a writ of mandamus. That was it!
The Court didn't "invalidate" anything. To the contrary, Marshall accurately explained how courts should treat a statute that conflicts with the Constitution:
So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
Marshall explained, with his remarkable clarity, that the remedy is limited to a "particular case." The statute is not nullified, writ large. Instead, Marbury simply doesn't get his writ.
Justice Thomas recognized this analysis in Murphy v. NCAA:
As Chief Justice Marshall famously explained, "[i]t is emphatically the province and duty of the judicial department to say what the law is" because "[t]hose who apply the rule to particular cases, must of necessity expound and interpret that rule." Marbury v. Madison, 1 Cranch 137, 177 (1803). If a plaintiff relies on a statute but a defendant argues that the statute conflicts with the Constitution, then courts must resolve that dispute and, if they agree with the defendant, follow the higher law of the Constitution. See id., at 177–178; The Federalist No. 78, p. 467 (C. Rossiter ed. 1961) (A. Hamilton). Thus, when early American courts determined that a statute was unconstitutional, they would simply decline to enforce it in the case before them. See Walsh 755–766. "[T]here was no 'next step' in which courts inquired into whether the legislature would have preferred no law at all to the constitutional remainder." Id., at 777.
Justice Kavanaugh has no response to Justice Thomas's accurate analysis. Nothing is "invalidated." And Marbury cannot support modern severability doctrine.
Justice Kavanaugh cites a second Marshall decision to support the notion of "partial invalid[ation]."
As Chief Justice Marshall later explained, if any part of an Act is "unconstitutional, the provisions of that part may be disregarded while full effect will be given to such as are not repugnant to the constitution of the United States." Bank of Hamilton v. Lessee of Dudley (1829).
If you've never heard of Dudley, you're not alone. I could only find one case that has ever quoted this proposition: the District Court of Minnesota in 1888. In Dudley, Marshall was not discussing modern severability jurisprudence in which parts of statutes can be invalidated in part. Rather, he was discussing traditional equitable principles, in which a remedy was limited to a particular case.
In Dudley, the defendant argued that a law governing the Ohio territory violated Article I, Section 10 of the Constitution. But Marshall concluded that this question did not "properly arise in the present actual state of this controversy." Why? Because the case "must be submitted to a jury," in accordance with the Seventh Amendment. But the law did not allow the claim to be submitted to a jury. Rather, the law required the "appoint[ment of] commissioners for the decision of questions which a court of common law must submit to a jury."
At bottom, Dudley is a Seventh Amendment case. Most of the citations I found to this case actually concerned the right to a civil jury. For example, Justice Thomas cited Dudley in in Feltner v. Columbia Pictures Television (1998). He wrote: "Bank of Hamilton v. Lessee of Dudley, 2 Pet. 492, 7 L.Ed. 496 (1829) … held in light of the Seventh Amendment that a jury must determine the amount of compensation for improvements to real estate."
But in the final paragraph of Dudley, Chief Justice Marshall added further observations. He wrote:
But this inability of the courts of the United States to proceed in the mode prescribed by the statute, does not deprive the occupant of the benefit it intended him. The modes of proceeding which belong to courts of chancery are adapted to the execution of the law; and to the equity side of the court he may apply for relief. Sitting in chancery, it can appoint commissioners to estimate improvements as well as rents and profits, and can enjoin the execution of the judgment at law until its decree shall be complied with. If any part of the act be unconstitutional, the provisions of that part may be disregarded while full effect will be given to such as are not repugnant to the constitution of the United States or of the state or to the ordinance of 1787. The question whether any of its provisions be of this description, will properly arise in the suit brought to carry them into effect.
Marshall's analysis is premised on the equitable jurisdiction of a "court of chancery." These equitable courts could only issue judgments in particular cases. It isn't clear how this analysis extends to courts of law. Moreover, the remedy Marshall alludes to involves a single case: the unconstitutional portion is simply not enforced for the claimant. The chancellor could not "invalidate" a statute, in any regard. (Sam Bray has articulated this point well). Indeed, this analysis closely tracks Marbury, which referenced a remedy in a "particular case."
Neither Marbury nor Dudley provides support for modern severability doctrine. As the saying goes, it must be nice to have John Marshall on your side. But Marshall is with Thomas and Gorsuch.