The Volokh Conspiracy

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Please Excuse My Dear Aunt Severability

What is the correct order of operations for California v. Texas?


Think back to middle school math. You likely learned the phrase, Please excuse my dear Aunt Sally. This mnemonic device was used to teach the order of operations for math questions: (1) Parentheses, (2) exponents, (3) multiplication, (4) division, (5) addition, (6) subtraction. (Not to be confused with My very educated mother just served us nine pizzas, to remember the then-nine planets in the Solar System).

At least in math, people agree on the correct order in which problems should be tackled. Alas, there is no such uniformity in the law. You would think that a complaint must survive a predictable gauntlet: (1) jurisdiction, (2) prudential doctrines, (3) merits questions, (4) remedies, etc. But the Supreme Court has routinely authorized courts to consider issues out of order. For example, under the Ruhrgas/Sinochem doctrine any "nonmerits threshold question[s]" may warrant "dismissal short of reaching the merits."

For example, let's say a case presents a thorny jurisdictional question, but the Plaintiff is outside the "zone of interests." Here, the court can basically assume jurisdiction, but toss the case on a non-jurisdictional ground. Or perhaps the Plaintiff seeks an injunction against the federal government that is barred by the doctrine of sovereign immunity. In such a case, the court may simply skip over the difficult merits question, and toss the case because the remedy is not permissible. And so on.

California v. Texas may fall into this topsy-turvy framework. Before the case is argued, parties put forward their best arguments about the case, in sequential fashion: (1) do the plaintiffs have standing, (2) do the plaintiffs prevail on the merits, (3) do the plaintiffs prevail on severability. But ultimately, the Court may simply skip steps 1 and 2, and jump to 3. I flagged this possibility, which co-blogger Steve Sachs wrote about.

In short, the Court can assume there is jurisdiction, assume the mandate is unconstitutional, but find that the mandate is severable from the ACA. This outcome would avoid resolving the (in my mind) difficult jurisdictional issues, and avoid having to settle precise holding of NFIB. This is the sort of outcome that the Chief Justice would love. But are there four votes to support this avoidance principle?

Imagine this breakdown:

Four Justices hold that one or more Plaintiffs have standing; the other five do not address standing. Five Justices hold that the mandate is unconstitutional; the other four do not address the merits. Six Justices hold that the mandate is severable from the ACA. One Justice holds that the mandate is not severable from Guaranteed Issue and Community Rating. And two Justices hold that the remedy should be limited to address the plaintiffs' injuries (along the line suggested in the Cato amicus brief).

I've learned one important lesson from following the ACA litigation for a decade: always prepare to be surprised.