The prospect of the Supreme Court deploying severability doctrine in any high-stakes litigation should fill legalists with dread. And the present challenge to the so-called individual mandate in the Patient Protection and Affordable Care Act is high-stakes litigation.
Severability doctrine is a discretionary destructive device. And when judges wield it to lay waste to legislative handiwork, everyone loses. The only winners are the cynics about law whose cynicism is vindicated by the judiciary’s adventuresome expansion of invalidity beyond unconstitutionality.
My first article-length law review piece, Partial Unconstitutionality, was about severability. I wrote it before the PPACA was enacted and without that legislation in mind. In fact, severability doctrine seemed at the time to be in the backwaters of scholarly and judicial interest. That was typical. Nobody pays attention to severability until it matters, and then the doctrine usually evades scrutiny by remaining in the shadows of the substantive constitutional rulings that occasion its application. Sure, there have been bouts of handwringing about severability–as when the Court was busy striking down New Deal legislation in the 1930s, or when INS v. Chadha‘s constitutional holding threatened over 200 statutes that also contained legislative vetoes in the early 1980s. But life would go on and severability would slink back into the shadows.
The recent oral arguments about the severability of the so-called individual mandate have shone a spotlight on severability. And what we have seen isn’t pretty.
The good news is that the Justices recognize an ugly doctrinal state of affairs. The bad news is that there appears little prospect when working within the assumptions of current doctrine to make it better. Barring some serious rethinking of the doctrine, its use in the health care litigation (if it ends up being used) can only make a bad doctrinal situation worse.
Consider the following interchanges about existing severability doctrine as applied to the PPACA, and ask yourself what good is likely to come of this:
JUSTICE SCALIA: * * *Why do we look to the — are you sure we look to the intent of the Congress? I thought that, you know, sometimes Congress says that these provisions will — all the provisions of this Act will be severable. We ignore that when the Act really won’t work, when the remaining provisions just won’t work. Now, how can you square that reality with the proposition that what we’re looking for is what would this Congress have wanted?
MR. CLEMENT: Well, two responses, Justice Scalia: We can look at this Court’s cases on severability, and they all formulate the test a little bit differently.
JUSTICE SCALIA: Yes, they sure do.
MR. CLEMENT: But every one of them talks about congressional intent. But here’s the other answer
JUSTICE SCALIA: That’s true, but is it right?
MR. CLEMENT: It is right. And here’s how I would answer your question, which is, when Congress includes a severability clause, it’s addressing the issue in the abstract. It doesn’t say, no matter which provisions you strike down, we absolutely, positively want what’s left.
JUSTICE SCALIA: All right. The consequence of your proposition, would Congress have enacted it without this provision, okay, that’s the consequence. That would mean that if we struck down nothing in this legislation but the — what’s it called, the Cornhusker kickback, okay, we find that to violate the constitutional proscription of venality, okay? (Laughter.) When we strike that down, it’s clear that Congress would not have passed it without that. It was the means of getting the last necessary vote in the Senate. And you are telling us that the whole statute would fall because the Cornhusker kickback is bad. That can’t be right.
MR. CLEMENT: Well, Justice Scalia, I think it can be, which is the basic proposition, that it’s congressional intent that governs. * * *
* * *
JUSTICE KENNEDY: But I’m still not sure, what is the test — and this was the colloquy you had with Justice Scalia with the corn husker hypothetical. So I need to know what standard you are asking me to apply. Is it whether as a rational matter separate parts could still function, or does it focus on the intent of the Congress? * * *
MR. CLEMENT: Sure. Justice Kennedy, the reality is I think this Court’s opinions have at various times applied both strains of the analysis.
JUSTICE KENNEDY: And which one — and what test do you suggest that we follow if we want to clarify our jurisprudence?
MR. CLEMENT: I’m — I’m a big believer in objective tests, Justice Kennedy. I would be perfectly happy with you to apply a more textually based objective approach. I think there are certain justices that are more inclined to take more of a peek at legislative history, and I think if you look at the legislative history of this it would only fortify the conclusion that you would reach from a very objective textual inquiry. But I am happy to focus the Court on the objective textual inquiry.
CHIEF JUSTICE ROBERTS: I don’t understand –
JUSTICE KENNEDY: And that objective test is what?
MR. CLEMENT: Is whether the statute can operate in the manner that Congress — that Congress intended.
JUSTICE SOTOMAYOR: No statute can do that, because once we chop off a piece of it, by definition, it’s not the statute Congress passed. So it has to be something more than that.
MR. CLEMENT: Justice Sotomayor, every one of your cases, if you have a formulation for severability, if you interpret it woodenly it becomes tautological. * * *
* * *
CHIEF JUSTICE ROBERTS: The reality of the passage — I mean, this was a piece of legislation which, there was — had to be a concerted effort to gather enough votes so that it could be passed. And I suspect with a lot of these miscellaneous provisions that Justice Breyer was talking about, that was the price of the vote. Put in the Indian health care provision and I will vote for the other 2700 pages. Put in the Black Lung provision, and I’ll go along with it. That’s why all — many of these provisions, I think, were put in, not because they were unobjectionable. So presumably what Congress would have done is they wouldn’t have been able to put together, cobble together the votes to get it through.
MR. CLEMENT: Well, maybe that’s right, Mr. Chief Justice. And I don’t want to, I mean, spend all my time on — fighting over the periphery, because I do think there are some provisions that I think you would make, as an exercise of your own judgment, the judgment that once you’ve gotten rid of the core provisions of this Act, that you would then decide to let the periphery fall with it. But if you want to keep the periphery, that’s fine. What I think is important, though, as to the core provisions of the Act, which aren’t just the mandate community rating and guaranteed issue, but include the exchanges, the tax credit, Medicare and Medicaid — as to all of that, I think you do want to strike it all down to avoid a redux of Buckley.
One unfamiliar with the “periphery” here might think that its continued existence as a matter of law would be unimportant and deserving of the casual treatment it received from Mr. Clement’s dependence on the Court’s “own judgment.” Maybe the Court should “let the periphery fall” with the “core provisions,” but maybe not; if the Court wants “to keep the periphery, that’s fine.”
Sure, this apparent indifference to the fate of the “periphery” is okay for those locked in the “Obamacare” battle. But it’s cold comfort for those whose lives are directly affected by the provisions out on the periphery–provisions not peripheral but central to their lives and of much more importance to these people than the “core” of the “Obamacare” dispute.
[...] doctrine is not only a “discretionary destructive device” that “calls on judges to act, consciously, like legislators,” but it also results in [...]