Part V: Barr v. AAPC, Severability Doctrine, and Chief Justice Marshall

Marbury v. Madison does not support modern severability doctrine.


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.

NEXT: Part IV: Barr v. AAPC and Modern Severability Doctrine

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  1. I do not take Kavanaugh to be arguing that “modern severability doctrine” is the same as that of the Marshall court. Instead, I take him to be saying:
    (1) It has developed incrementally from the decisions of the early courts, like Marbury v Madison.
    (2) It normally gets you to the same place (e.g. Marbury v. Madison would have come out the same way).
    (3) It prudentially avoids clashing with the other branches (the “a wolf in sheep’s clothing” bit).
    (4) Now that we’ve stopped trying to guess Congress’s counterfactual intent, severability doctrine is now “stable,
    predictable, and commonsensical.”
    (5) It’s too late in the day and too well-established to try to upend it (“John Marshall is not walking through that door.”)

    Of course Gorsuch/Thomas more closely reflect judicial practice as the early courts would have understood it. But Kavanaugh/Roberts have, for the most part, the more administrable position. It’s not an accident that the course of the law has flowed in that direction since Marshall’s time.

    Gorsuch’s position ends up “severing” almost at random, based on the posture of the case and the nature of the complaint. Sometimes “too much,” sometimes “too little.” In Seila Law it would have effectively shut down the entire CFPB just because of the removal provisions, whereas in another case it might leave the rest of the statute in place while effectively eliminating a provision crucial to the “overall statutory scheme” (see e.g. King v Burwell). In formal terms, Gorsuch is hewing to separation of powers, but in practical terms it’s setting the judiciary on a collision course with the other branches.

    Gorsuch is right about reliance, but that cuts both ways – what about those who have relied on (say) a CFPB ruling retrospectively deemed invalid? And his view on severability is pretty new at SCOTUS. As recently as 2012, Thomas voted to invalidate the entire ACA in NFIB v Sebelius. How stable and predictable can the law be if new fashions in severability rise and fall like this?

    Overall I think Kavanaugh makes a very strong case. His weakest point is (4). No, I do not think severability doctrine is particularly predictable, a huge amount of judicial discretion is needed to make it work (including in this case). So it goes.

    1. Very well said.

      I think wrt to Kav’s point #4 it often isnt so difficult. Congress often includes severability provisions, which makes the case clear-cut (im not sure when such a provision has been disregarded).

      And here, the outcome seems fairly stable and predictable. Not upending the entire statute.

    2. I would add to this only that the entire issue is a tempest in a teapot. If Congress wants the entire statute to become ineffective (using whatever form of words a court prefers) in the absence of the unconstitutional provision, it can fix the problem itself.

      1. And I would further argue that like many silly supposedly “originalist” stuff Thomas advocates, it’s meaningless until it gets somewhere near 5 votes on the Court. And the fact that people like Brett Kavanaugh and Samuel Alito don’t buy it, even though they are both staunch conservatives, tells you that isn’t happening.

        A lot of this stuff is really masturbatory. Thomas gets a thrill from telling the whole legal system that it is wrong. But he’s not really convincing anyone who needs to be convinced.

        1. I think this is unfair. This is a relatively new position for Thomas to be taking, and there are already two consistent votes for it, at least this term. It also taps into the broader concerns about “cosmic injunctions,” binding effects on non-parties, etc, that have horrified everyone. For all we know, this will be the mainstream doctrine in 30 years time, and Thomas is playing a crucial role in making it happen. I doubt it, but it’s far too early to tell whether this is winning over the relevant hearts and minds.

          1. Thomas has been on the Court for 29 years. He hasn’t convinced 5 colleagues of ANY of his 29 years of extreme positions, literally not a single time. There’s no doctrine like Apprendi or Crawford (two Scalia innovations) where you can show where Thomas has convinced 5 justices to remake the law.

            I am being totally fair to Thomas. He is an interesting thinker- I have never denied this. But he is terrible at his job, which is to actually build consensus with the 8 other people on his Court, who are just as brilliant as he is. They-including his conservative colleagues- view him as a crank, which is why he literally never gets 5 votes for anything interesting.

            1. Also, Josh twists, Marbury v. Madison to fit his needs. The statute at issue was the Judicial Act which expanded the court’s original jurisdiction. In the end, Chief Justice Marshall strikes down the extension by congress of the court’s original jurisdiction.
              Therefore, denying the court any power to hear the case head-on. Yet if the entire law had been struck down then the entirety of the judiciary would have disappeared since it was also included in the act. Instead, Marshall strikes down the entire portion expanding the Supreme Court’s original jurisdiction.

  2. Marbury does support modern severability doctrine.

    Courts always decide “particular cases” and must always decide how the law, including the Constitution, applies to the case before them.

    Also, saying that nothing was “invalidated” in Marbury is wrong. The original jurisdiction of the Supreme Court in cases other than those specified in the Constitution itself was invalidated.

  3. I don’t think plaintiffs had standing to contest the exemption for government debt robocalls. Prohibiting them would not and did not address their grievances. There was no redressibility.

    The court should have waited for a case when government debt robocall recipients sued claiming the robocalls violated their rights. Then there would be standing to make the judgment it made.

    In the present case, the court should have found the statute constitutional as applied, and noted that the constitutionality of the government debt execption was questionable but the question would need to await a plaintiff with standing.

    1. I agree. If we’re going to go with Gorsuch’s approach to severability, it seems like it needs to be paired with this kind of approach to standing so that the remedy can have something to do with the unconstitutional part of the law.

    2. Lawyers might like those kinds of decisions, but it makes the law clear as mud to most people.

      If we are to invoke Marshall, then let the supreme court “say what the law is”, as clearly as possible.

    3. “In the present case, the court should have found the statute constitutional as applied,”

      I don’t think this is correct. The statute was not constitutional as applied. It prevented some robocalls but not others based on content. So the court cured the problem by inventing a statute that banned all robocalls.

      1. Did it “invent” one or did it remove a provision that carved out an exclusion to a previous statue that banned all robocalls… one that Congress invented and later tried to patch over?

        IANAL but as I under stand it… it was the change to the underlying statute that created the exemption carve out. It was this change, not the underlying statute, that was in question. By stopping the application of the change the court merely let stand the underlying rule that all robocalls were banned.

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