In the wake of a Supreme Court ruling in a Michigan land dispute earlier this year, I explained in a column for this site that the non-ideological divisions between the justices on display in the case reflected disagreement on a deep question about the very nature of law: How general must a legislative command be to count as a law? I asked: “How many cases must a law target to count as general? Two? Three? Ten? What if a law targets only one case, but that case is a class action involving many class members?” Despite the fundamentality of these questions, opinions by US courts provide little guidance.
A recent high-profile case reveals yet more uncertainty about the very nature of law in the US. The ruling by a federal district judge in Texas striking down the entirety of the Affordable Care Act (ACA) rests on a highly unorthodox view of “severability”—a doctrine that aims to answer the following question: when a court finds that some legal provision violates the Constitution, to what extent does its unconstitutionality infect otherwise valid portions of the law? Although Judge O’Connor’s reasoning will likely be reversed on appeal, severability doctrine itself is mysterious, because we have no firm agreement about what exactly it is that our courts do when they declare laws unconstitutional.
The Latest Obamacare Ruling
In 2012, in NFIB v. Sebelius, the Supreme Court rejected the claim that Congress lacked the power to impose an individual mandate to purchase health insurance. Chief Justice Roberts and the Court’s four Democratic appointees concluded that the mandate fell within the power of Congress to tax, because the mandate was enforced by a tax. People had the option of paying the tax or purchasing health insurance. As part of a package of changes to federal tax laws enacted late last year, Congress reset to $0 the tax owed for failure to obtain mandated insurance. Thus, Judge O’Connor concluded, the mandate could no longer be seen as an exercise of the taxing power and is now unconstitutional.
That reasoning is highly dubious in its own right. As Professor Martin Lederman explained, a much more straightforward understanding of Congress’s action in late 2017 is that it eliminated the mandate, not rendered it unconstitutional.
Judge O’Connor’s contrary conclusion rests on the fact that Congress only zeroed out the penalty but left the obligation on the books. He says that some people will feel compelled to comply with the law, even if they could avoid compliance without risking any financial or other sort of penalty.
Yet the number of such compulsive rule-followers is undoubtedly small enough to undercut the next, even more dubious aspect of Judge O’Connor’s ruling, regarding nonseverability. He says that the Congress that enacted the mandate in 2010 thought it was essential to the operation of the rest of the law, so without a mandate the whole law must fall.
But whatever views about the relation of the mandate to the rest of the law that Congress may have had in 2010 were views about a mandate backed by a substantial sanction, not about a mandate backed by no sanction. Only one Congress could have had a view about the essentiality or non-essentiality of a mandate backed by no sanction: the 2017 Congress that zeroed out the tax for noncompliance with the mandate. And while many of the Republicans who voted for that change undoubtedly wished they had the votes to repeal the whole ACA, there is no evidence that Congress thought that’s what it was doing. Rather, as indicated by news reports at the time, Congress believed itself to be eliminating the mandate.
The Tension Between Nonseverabilty and Textualism
Judge O’Connor’s views about nonseverability are more radical still. Echoing the joint dissent of four conservative justices in the 2012 NFIB case, Judge O’Connor invalidates the whole of the ACA, not just those provisions governing the individual insurance market, which could fairly be said to be at least somewhat interrelated with the mandate. He strikes down provisions relating to wholly unrelated programs, such as Medicare, Medicaid, and employer-provided health insurance.
Can that approach be justified? Although Judge O’Connor’s application of the principle is flawed, at least in theory one could see the logic of wholesale invalidation. Suppose that Congress is considering environmental legislation that will lead to the loss of jobs for coal miners; in order to obtain support from senators and representatives from West Virginia and other coal-mining states, the legislation also allocates funding to military bases and contractors in those states; and finally, suppose that the resulting statute contains a blanket nonseverability clause. Even though the environmental regulation is functionally unrelated to the funding for military bases and contractors, the nonseverability clause indicates that Congress wished the compromise to stand or fall together. If a court were to find a key provision of the environmental legislation invalid, it would invalidate the base funding and contractor provisions as well. Thus, nonseverability of functionally unrelated provisions is at least a conceptual possibility.
Congress rarely takes the foregoing sort of action, however, and in the absence of a nonseverability clause, courts are poorly positioned to infer that legislation must stand or fall as a single package. Indeed, the conservative justices who championed broad nonseverability in the 2012 ACA case have, in other contexts, explained why not.
The late Justice Scalia will be remembered most for his advocacy of originalism in constitutional cases and “textualism” in statutory cases. Although the Court has not adopted every aspect of Scalia’s textualism, he was quite influential in shifting the focus of attention in statutory cases from the intentions of Congress to the language it enacted. Speaking for a unanimous Court in a 1998 sexual harassment case, Justice Scalia summed up the now-prevailing view this way: “it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”
Judge O’Connor’s nonseverabilty ruling in the latest Obamacare case and the nonseverability dissent that Justice Scalia co-authored in the 2012 Obamacare case both run away from textualism’s central contribution to modern statutory interpretation doctrine.
Where Do Laws Begin and End?
If Judge O’Connor’s approach to severability is wrong—and it is wrong—what approach should courts take? That question is harder to answer, because the very notion of severability assumes a common understanding of where laws begin and end for constitutional purposes. Surprisingly, we don’t have one.
The fundamental problem may be a mismatch between our theory and our practice of judicial review. In some other countries, constitutional courts have the power to strike down laws as such. In the US, by contrast, at least officially judicial review arises as a byproduct of the Constitution’s Supremacy Clause, which merely states a priority rule. As Justice Scalia put the point in the jurisdictional portion of his dissent from the 2013 ruling striking down the Defense of Marriage Act, US courts perform the role of deciding on the constitutionality of legislation “incidentally—by accident, as it were—when that is necessary to resolve the dispute before” them.
Scalia was right, but only technically. As a practical matter, in constitutional cases, US courts, and especially the Supreme Court, serve roughly the same function as foreign constitutional courts with the power of “abstract” judicial review outside the context of any concrete case: passing on the validity of legislation as a general matter. But because our courts have, as it were, retrofitted a power to declare laws unconstitutional onto a system in which officially they only resolve concrete disputes, awkwardness ensues at the boundary. Severability marks that boundary.
Consider that our courts treat particular applications of laws, and not just discrete linguistic subparts of the laws themselves, as generally severable. That approach reflects the preference for so-called as-applied litigation, but it can lead to puzzles. We have some idea of what it means for different parts of a law to be so interrelated that they must stand or fall together, but in what sense are different applications interrelated or not?
Or consider the difficulty presented in the current Obamacare challenge: a law that is supposedly rendered invalid by a subsequent amendment. Intervenors in the case argued that if indeed the 2017 change in the tax law rendered the ACA unconstitutional, then the tax law rather than the ACA should be held invalid. They relied on the following statement by the Supreme Court in the 1928 case of Frost v. Corporate Commission of Oklahoma:
the statute, before the amendment, was entirely valid. When passed, it expressed the will of the legislature which enacted it. Without an express repeal, a different legislature undertook to create an exception, but, since that body sought to express its will by an amendment which, being unconstitutional, is a nullity, and therefore powerless to work any change in the existing statute, that statute must stand as the only valid expression of the legislative intent.
Judge O’Connor distinguished Frost on the ground that the plaintiffs in Frost challenged the amendment to the statute, not the original statute, whereas the plaintiffs in his case challenged the original ACA. Yet while that logic might explain why Judge O’Connor was right not to invalidate the tax law, it casts doubt on his nonseverability holding itself. After all, no one in the case before him challenged the numerous provisions of the ACA that he invalidated along with the individual mandate.
What about omnibus legislation? Some state legislatures operate under single-subject rules, but no such limit applies to Congress, which frequently passes legislation that covers multiple subjects, sometimes amending provisions scattered across different titles of the US Code, adding wholly new Code sections, or both. Does a ruling that one provision of an omnibus law is invalid infect the entire omnibus law? Just those portions that deal with the same subject? And what about the pre-existing provisions they amend?
I do not mean to suggest that these questions cannot be answered. I do mean to suggest that existing severability doctrine has not sufficiently grappled with them. As noted above, the part of severability doctrine that inquires into Congress’s hypothetical counterfactual intent is problematic on grounds that conservative jurists themselves ought to recognize. But even the core of severability doctrine—which asks whether a law can function coherently without an invalid provision or application—is somewhat problematic too, because it rests on uncertainties over what exactly courts do when they judge laws unconstitutional.
The Supreme Court established its power of judicial review in 1803 in Marbury v. Madison. In that case the Court rendered unenforceable a provision of Section 13 of the Judiciary Act of 1789, but, tacitly, left other applications and sections of the Act in effect. It implicitly severed, albeit without explanation. Over two centuries later, we still do not have full agreement on the nature or scope of the Marbury power. It is thus not surprising that we also lack full agreement on its remedial implications.