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A Draft of "Severability First Principles" is Now Available


For several years, I have been thinking about the doctrine of severability—what happens when courts conclude that a part of a law is unconstitutional? I have come to believe that this is fundamentally just a question about "say[] what the law is," as Marbury v. Madison put it. Marbury tells us that a statute does not make law if the Constitution prevents it from doing so. The severability question is simply what is the law, in light of what the law is not?

I finally have a draft article on these questions, Severability First Principles, forthcoming in the Virginia Law Review and available on SSRN. Here is the abstract:

The Supreme Court has decided a number of cases involving severability in the last decade, from NFIB v. Sebelius and Murphy v. NCAA to Seila Law v. CFPB, Barr v. AAPC, United States v. Arthrex, California v. Texas and Collins v. Yellen. The analysis has not been consistent, the Justices have not been able to agree, and the results have not been intuitive. Some of the Justices have proposed a revisionist approach, but they too have been unable to agree on what it requires.

This article proposes a return to first principles. Severability is a question of what the law is. Severability also includes two principles of constitutional law: that judges should enforce the law, and that the Constitution displaces ordinary law that is repugnant to it. And it also includes principles of non-constitutional law: that validly enacted statutes are law if they are not repugnant to the Constitution, that unenacted hopes and dreams are not, and that Congress may legislate for contingencies.

Much of the time, these principles lead to a simple bottom line: effectively complete severability, rebutted only by an inseverability clause or something else with the force of law. There are also harder cases where the bottom line is not so simple, but where the first principles of severability will nonetheless lead the way – the relevance of unconstitutional removal restrictions, the nonconstitutional law that resolves unconstitutional combinations, and the relevance of severability to standing and other procedural questions.

And here is the introduction:

When part of a statute is unconstitutional, the courts engage in severability analysis. According to the cases, this analysis couples a presumption with a possible rebuttal. The presumption is one of severability: "the invalid part may be dropped." The presumption is rebutted based on either an objective analysis, asking whether "what is left is fully operative law," or a subjective analysis, asking whether "it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not." Slightly more controversially, the same seems to be true for a single provision with constitutional and unconstitutional applications.

There have been many calls to abandon or reform severability doctrine. But there is no consensus about what the problem is or what to do instead. At least one problem, though, is methodological: the modern approach to statutory interpretation is heavily influenced by formalism generally and textualism specifically. Such judges have extra reason to be skeptical of current doctrine. They doubt the coherence or the relevance of counterfactual inquiries into legislative intent, and also tend to resist the normative analysis that sometimes lies behind particular severability arguments. And severability can look uncomfortably like "rewriting" a statute, which most judges today know they are not supposed to get caught doing. So we need an account of severability that makes formal sense.

This is a natural occasion for a return to first principles, and some

have tried. Several recent articles make promising contributions, and recent opinions by Justices Thomas and Gorsuch have attempted to synthesize them into a new revisionist account of severability. But their work is incomplete. Justices Thomas and Gorsuch cannot even agree among themselves in several recent cases, and throughout they may be trying to squeeze more certainty out of the literature than it can supply. We still need a clearer account of the first principles that answer the severability problem, and of what those principles do and do not imply.

Returning to first principles also requires us to disentangle how much of severability analysis comes from the Constitution, and how much it comes from statutory interpretation or other non-constitutional law. In truth, severability principles are a combination of both constitutional and non-constitutional law. The Constitution tells us that it displaces ordinary law that is inconsistent with it. It also tells us that judges (among others) are supposed to apply the law. But these constitutional principles are not all there is to severability. We also need to know what is the law, when some part of a statute has been found to be constitutionally repugnant? Ordinary principles of statutory interpretation fill in this answer. Federal law is what has been enacted by Congress, and not otherwise displaced, including any fallback law. And of course any non-federal legal rules also continue to apply.

Much of the time, these principles lead to a simple bottom line: judges should enforce a statute except in the specific cases where its application is unconstitutional. But this simplicity is deceptive. The bottom line becomes more difficult to see in the case of unconstitutional combinations: when two statutory requirements are unconstitutional if taken together, which one should be disregarded? These difficult cases – more widespread than many realize – illuminate an aspect of the Constitution that has been there all along: the Constitution tells us what the law isn't, but not always what it is. Solving the severability problem in these cases – saying what the law is – requires going beyond the text of statute, whether formalist judges like it or not.

Other difficulties come up in the context of standing and other threshold questions. When can a plaintiff establish standing on the basis of an inseverability argument, and when can a severability argument defeat standing? These questions have proven difficult for the Courts, but this time it is the difficulty that is deceptive. Once we straighten out our severability analysis, it drives to straightforward answers in these cases.

This paper puts forward the first principles of severability and then applies them, first to the easy cases and then to the hard ones. Part I argues that severability is a question of law; that the Constitution displaces repugnant law; and that all non-repugnant law should be enforced, including fallback law such as severability and inseverability clauses. Part II describes how these principles would reframe severability doctrine; how Justices Gorsuch and Thomas have come close to restating these principles; and how the principles also clarify facial challenges and national injunctions. Part III tackles the harder cases, such as unconstitutional combinations and standing.

Since it has come up on the blog before, here are my two discussions of California v. Texas, the attempt to gets courts to declare the complete invalidity of the Affordable Care Act through an inseverability argument.

I defend Texas's theory of standing:

In California v. Texas, the plaintiffs tried to get the Supreme Court to say that most of the Affordable Care Act was invalid because it was inseverable from the unconstitutional individual mandate. The case thus presented controversial questions of constitutionality (was the $0 mandate unconstitutional?), of severability (was the mandate indeed inseverable from the rest of the Act?), and of standing (could the plaintiffs raise this argument?). The Court resolved the case on standing grounds, but standing might in fact have been the least vulnerability in the plaintiffs' case.

The best argument for Texas's standing was "bank-shot" standing—that Texas was entitled to have an injunction against the plausible enforcement of Provision A, if Provision B is invalid and inseverable. This may seem like a strange form of third-party standing, but if inseverability is limited to fallback law it is actually unremarkable first-party standing. The plaintiff is effectively saying that Congress has instructed for Provision A not to be enforced if Condition X obtains, and that Condition X obtains. Such a plaintiff has an orthodox legal injury, an orthodox claim for why that injury is illegal, and an orthodox claim for redress.  A Court might be annoyed if the determination of Condition X involves an important or awkward question and the current case feels too unimportant to justifying answering it. But a judge's duty is to answer the questions necessary to apply the law to decide the cases before him, not the questions he would like to answer.

This is not to say that Texas's argument should have succeeded. Their bank-shot theory of standing rested on the premise of inseverability, and that premise was false. And because inseverability is a pure question of law, it can be resolved at a very early stage of the litigation – it would even be permissible to resolve it before considering the constitutional merits argument. So even if an inseverability argument can be used to produce standing, using a bad inseverability argument to produce standing has little consequence. A plaintiff who uses a bad inseverability claim to get into court and then lose has gained nothing more than a plaintiff who invents a fictitious cause of action to enforce a fictitious right. Perhaps the plaintiff has standing, but it is simply standing to lose on the merits a few minutes later.

In the course of denying Texas's claim to standing, the Court did not fully address "bank-shot" standing. It treated the argument partly as waived, and partly as a different kind of causation argument. Perhaps that was for the best. It could well be that the majority was fractured, both on whether to recognize bank-shot standing (which it should) and whether the inseverability arguments were correct (which they were not). But if the Court confronts the question again in cooler air, it should accept this kind of argument if there is inseverability.

But I argue that the statute was not inseverable:

[The dissent] asks the right question – does the Affordable Care Act provide that if the individual mandate is unconstitutional, the reporting requirements and adult-children coverage requirement should not be enforced? But its answer is wrong.

Focusing on the specific statutory requirements first: The individual mandate required people to buy a particular kind of insurance or pay a penalty, and defined what kind. The reporting requirements require employers to say whether they have provided that kind of insurance. If the mandate is now unconstitutional, nobody has to buy it, and nobody has to pay. But that does not mean nobody has to report it. The connection between the reporting requirement and the mandate was that they used the same criteria for what made an insurance plan covered. But the unconstitutionality of the mandate did not make the criteria unconstitutional, or forbid all cross-references to those criteria.

The adult-children coverage requirement has even less explicit connection to the individual mandate. It simply says: "A group health plan and a health insurance issuer offering group or individual health insurance coverage that provides dependent coverage of children shall continue to make such coverage available for an adult child until the child turns 26 years of age. Nothing in this section shall require a health plan or a health insurance issuer described in the preceding sentence to make coverage available for a child of a child receiving dependent coverage." No word about the mandate, nothing saying that judges should stop enforcing the provision if other economic premises of the law are false.

That leaves only the argument that the Affordable Care Act contained what is effectively an inseverability clause because it repeatedly finds that the individual mandate is "essential," to the larger regulatory scheme and to creating effective health insurance markets. One response is that this finding applied only to the 2010 mandate but not to the 2017 amended mandate. This response, however, would be unavailing against a true inseverability clause. If Congress enacts a severability or inseverability clause into law, it can amend the subjects of that law just as any other.

The more fundamental problem is that the "essential" finding is not an inseverability instruction. Every time Congress makes such findings to invoke its necessary-and-proper powers, it is stating its view about the importance and relevance of what it is doing. It is not thereby making fallback law. Indeed, nobody seems to have taken the essential = inseverable argument truly seriously: The ACA findings declare the individual mandate "essential" not only to other provisions of the ACA, but to all of the Employee Retirement Income Security Act and the Public Health Services Act. If the "essential" finding were an inseverability clause, it would condemn these laws as well, which nobody was willing to argue or accept.

At bottom, many aspects of Justice Alito's dissent could hold up if the Affordable Care Act contained an inseverability clause. So too, Justice Gorsuch might well be able to join such a dissent if there were an inseverability clause. But there was not, and so this was a mistake.

In my view these questions in California v. Texas were actually fairly simple. The far more difficult and interesting question is the one posed in other cases by the problem of "unconstitutional combinations," which I discuss extensively in Part III of the piece:

It is easy enough to say the Constitution displaces unconstitutional laws, and requires the others to be enforced. But sometimes a law is unconstitutional only because it is combined in a particular situation with another law. In these cases, it is obvious that the easy saying is incomplete. Which law is to be displaced, and why?

Consider, for instance, the two layers of political insulation in Free Enterprise Fund v. PCAOB, where the Supreme Court held that it was unconstitutional for an agency (the PCAOB) to insulated from presidential control by two layers of protection. The PCAOB could be removed for cause by the SEC, whose members could be removed for cause by the President. One such layer, between the President and the SEC, was thought to be fine. One layer between the SEC and the PCAOB would also have been fine. But two layers – from the President and the SEC, then from the SEC to the PCAOB—"contravene[d] the President's 'constitutional obligation to ensure the faithful executive of the laws.'" In such a case, the Court must say more to explain which layer will be disregarded as repugnant.

These combinations problems generally take something like this form. There are Statutory Requirement A, Statutory Requirement B, and a Constitutional Requirement. Any two of these can be enforced. Requirements A and B work fine together were it not for the Constitution. The Constitution and A can be enforced, but not B. Or vice versa. Moreover, we know from basic principles of constitutional supremacy that the Constitution must be enforced. So the question remains what to make of A and B.

The problem may seem quirky, but it is a recurring one. In Arthrex, the separation of powers problem was a combination of the way that the administrative patent judges were appointed, the significance of the power they were given, and the lack of control of that power by superior officers. Seila Law and Collins, discussed earlier, are combinations problems too. The statutes there did two things – vest executive power in an appointed official, and tell the President there were limits on his ability to remove that official. Either of these things standing alone are permissible. Vesting executive power in removable officials is okay. Limiting the power to remove non-executive officials is okay. But not both together. The disagreement over severability in those cases can be seen as simply another application of the combinations problem. Some justices thought that it was the removal restriction that must be ignored, allowing the official to exercise enforcement authority if it was. Other justices thought that it was the enforcement authority which must be nullified in light of the removal restriction.

A different setting for the combinations problem came in in Barr v. American Association of Political Consultants, another recent severability case. There the Court concluded that the First Amendment forbade a combination of two rules: a general ban on robocalls, and a permission for robocalls for government-backed debt. Indeed, as AAPC reminded many lawyers, there is a whole class of cases dealing with the question of whether to "level up" or "level down" when there is a constitutionally impermissible discrimination between two classes of persons or activity. All of these level up/down cases are unconstitutional combinations: the higher level rule for one class, and the lower level rule for the other.

Indeed, it is hard to think of a constitutional challenge that is not at least partly a combinations case. Shelby County v. Holder, for instance, dealt with the preclearance requirements of the Voting Rights Act, whose coverage formula was not adequately justified. This might seem like a standalone constitutional problem. But the problem also partly came from adjacent provisions, such as the limited ability to add and remove jurisdictions from coverage based on new developments. The Solicitor General argued that these provisions were enough to save the statute, and even if they weren't, that suggests that if the Court had instead said that the Constitution required more vigorous "bail in" and "bail out," the preclearance formula could have been saved. Indeed, we have proof of this: in a previous case the Court had broadened the "bail out" provision to help rescue the statute from unconstitutionality.

Recognizing the ubiquity of the unconstitutional combinations problem is clarifying. But it is also daunting. For at this point the simple model of repugnancy and enforcement seizes up: Courts should disregard the two statutory provisions because they are unconstitutional. But once both provisions are disregarded there is actually no need to disregard one of them, because it is permissible on its own. Or alternatively there is no need to disregard the other, because it is permissible on its own. So on what warrant can courts disregard the first rather than the second, or the second rather than the first?

Thus the problem of combinations points to a way in which simple formalist accounts of severability are incomplete. Unconstitutional combinations, which have always been possible, highlight that when the Constitution tells us what the law isn't, it does not always tell us enough about what it is. This is most obvious in cases like Arthrex or Free Enterprise Fund, but it is an instance of the general point that what the sub-constitutional law is depends at least in part on the sub-constitutional law. That's always true, and easier cases involving partial unconstitutionality just obscure the point because it's so clear what the sub-constitutional law is in those cases. Even seemingly easy cases of severability actually rest on the conclusion (usually implicit) that no separately constitutional rule or application is dependent on a separately unconstitutional rule or application.

With all of the difficulties in mind, let us focus on possible solutions….

I encourage you to read the piece if you are interested in more. And the piece will be in edits over the summer, so suggestions are still welcome!