How is bestiality still validly punished as a crime in Virginia? Or is it no longer a crime? Some questions for Dahlia Lithwick.

Writing at Slate, Dahlia Lithwick criticizes what she describes as Ken Cuccinelli’s “war on consensual sodomy in the commonwealth.”  I have criticized Cuccinelli before myself, but it is a mistake to view Cuccinelli’s actions here as an attempt to “employ the federal courts to advance a personal moral agenda.” Although Lithwick’s piece makes some good policy arguments about the advisability of revising Virginia law, I disagree with Lithwick’s criticism of the Attorney General of Virginia for seeking Supreme Court review of a federal habeas corpus decision that incorrectly held a state law partially facially unconstitutional notwithstanding the strictures of 28 U.S.C. § 2254(d).

Before getting into some fairly dense discussion of things like facial challenges and severability that explains why Virginia’s position makes good legal sense, it is fitting at the outset (before I have lost both of my readers) to criticize Lithwick’s piece from the standpoint of legal journalism. It is, of course, fair to criticize a discretionary choice to seek discretionary review, and reasonable people may disagree about whether Virginia should have sought certiorari. But Lithwick’s characterization of the arguments advanced by Virginia in its petition for certiorari is inaccurate and misleading. Virginia is not asking the Supreme Court to “interpret [Virginia’s] terrifyingly broad sodomy law to apply only to sex involving 16- and 17-year-olds,” as Lithwick puts it. Rather, Virginia is asking the Supreme Court to hold that Lawrence v. Texas invalidated Virginia’s statute only insofar as the statute is applied to criminalize consensual, private, non-commercial, adult conduct of the sort at issue Lawrence. According to Virginia’s petition, that is the view of Lawrence adopted by virtually every other court in the country. And asking the Supreme Court to rein in the Fourth Circuit’s outlier reading hardly amounts to “begging out-of-touch, elitist, liberal federal courts to make ad hoc decisions about which private sex acts are ‘unnatural’.” I realize that there can be many legitimate ways of characterizing legal arguments. But in this piece, Lithwick trades precision for sensationalism. Moreover, the version of the piece that is up as I write contains seventeen links, but not one of these is to Virginia’s actual legal arguments. At a minimum, Slate should immediately include a link to Virginia’s petition so that its readers can judge for themselves. And Slate should probably also add a link to the Fourth Circuit’s opinion itself. (The closest the piece comes now is a link to a post at Constitutional Law Prof Blog. Happy for them to get the traffic, go read!, but there’s nothing like going straight to the source.)

Okay, now for the technical legal stuff of a sort that I find interesting but that has the proven capacity to bore my family (and probably almost anyone else stuck with me on long car trips) to tears.

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Did the Joint Dissent’s “Christmas Tree” argument for inseverability come from a Politico op-ed by Senator Mitch McConnell and Carrie Severino?

The recent revelations about the process of writing the opinions in NFIB v. Sebelius explain much about some otherwise puzzling aspects of the opinions. Many have noted, for example, that the Joint Dissent by Justices Scalia, Kennedy, Thomas, and Alito reads like a patchwork. The switch-induced time pressure under which these Justices jointly produced the opinion may have exacerbated the normal difficulties of assembling all the pieces into a unified whole. And the process may have allowed in arguments whose provenance may have been unknown to all of the authoring Justices.

Something like that may have happened with respect to the Joint Dissent’s reasoning about the alleged inseverability of § 5000A and the Medicaid expansion from the rest of the Act. The Joint Dissent’s analysis relied on Christmas tree imagery to argue for inseverability:

The Court has not previously had occasion to consider severability in the context of an omnibus enactment like the ACA, which includes not only many provisions that are ancillary to its central provisions but also many that are entirely unrelated—hitched on because it was a quick way to get them passed despite opposition, or because their proponents could exact their enactment as the quid pro quo for their needed support. When we are confronted with such a so-called “Christmas tree,” a law to which many nongermane ornaments have been attached, we think the proper rule must be that when the tree no longer exists the ornaments are superfluous. We have no reliable basis for knowing which pieces of the Act would have passed on their own. It is certain that many of them would not have, and it is not a proper function of this Court to guess which.

NFIB v. Sebelius, Scalia, Kennedy, Thomas, & Alito, JJ., dissenting.

Where did the Christmas tree imagery come from? Throughout the litigation, there have been references to the PPACA as a Christmas tree. The bill passed the Senate on Christmas Eve, 2009, and it was criticized for being loaded down with “ornaments” to garner different legislators’ votes. But the insertion of the Christmas tree into severability analysis appears to derive from a January 31, 2012 Politico op-ed authored by Senator Mitch McConnell and Carrie Severino. The op-ed states:

The new health law is what we call a “Christmas tree” bill, decorated with countless provisions before it is passed. For example, the “Louisiana Purchase,” which guaranteed hundreds of millions of dollars in special payments to that state’s Medicaid programs. Or the “Cornhusker Kickback,” which, as originally drafted, would have given special treatment to Nebraska to sway a fence-sitting senator. Those provisions include everything from taxes on tanning salons to slush funds for bike paths as ornaments.

The question that will be facing the court is: What happens to the ornaments if the tree falls?

* * *

All the parties — including the Obama administration — agree that the new insurance regulations are so dependent on the mandate they couldn’t function without it. If the trunk of a tree is severed, then the branches fall with it.

The administration nonetheless now argues that the tree’s “ornaments” somehow remain suspended in midair after the tree is gone.

Senator McConnell was the lead signatory on an amicus brief regarding severability that included Ms. Severino as counsel. But that brief did not mention a Christmas tree. Nor, as far as I can tell, did any of the other briefs in NFIB v. Sebelius filed in support of total inseverability.

It may be that whichever Justice authored this portion of the Joint Dissent came up with the Christmas tree image on his own. Or there may be some other source in the litigation that it came from. But it would be interesting if its usage derived in some way from the McConnell/Severino op-ed. For if that’s where it came from, and if all the authoring Justices knew that, it would be surprising that it stayed in the opinion. There are many other ways that they could have made the same point.

Suppose that the opinion had garnered just one more vote. And suppose that the instrument of destruction for all the provisions whose constitutionality has not been questioned had been imagery supplied by the Senate Minority Leader and the Chief Counsel and Policy Director of the Judicial Crisis Network–imagery supplied not in a brief, but rather in an Internet-only op-ed aimed at D.C.’s political and legal elites, imagery that picks up on a talking point tied to the political maneuvering that led to the Act’s Senate passage on Christmas Eve. It’s not hard to predict what sorts of criticisms would have rained down on this part of the opinion.

It very well may be that the imagery did not derive directly from the McConnell/Severino op-ed. Another possibility is that the Christmas tree imagery was just “in the air” in D.C. over the past couple of years. There was no particular source for its usage in the Joint Dissent, but rather it was just part of the available imagery given the season of judicial review of the the PPACA. Perhaps the composing Justice just adopted what was ready at hand. If that’s what happened, the close connection with the McConnell/Severino op-ed suggests a reason for circumspection in one’s choice of imagery. For with respect to the PPACA, the Christmas tree imagery had a political tint given the timing and circumstances of its passage in the Senate on Christmas Eve 2009. That coloring suggests a reason to reach out for some other imagery even though legislatures regularly pass so-called Christmas tree bills, bills which may be appropriately so called even when they are not passed around Christmas time.

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PPACA Severability Series, Post 4

Following the Supreme Court oral arguments in the health care litigation, there has been much more after-argument augmention of merits analyses than severability analyses. That is unfortunate because an incorrect approach to severability poses a more significant problem of long-term distortion of the federal judicial role in constitutional adjudication. This PPACA severability series is an attempt to continue the conversation about severability.

The primary obstacle to clear thinking about severability is a pernicious metaphor that describes invalidation as excision, which is in turn understood as a legislative function. The operation of this metaphor can be seen, for example, in a recent article by Tom Campbell, Dean and Donald P. Kennedy Chair in Law, and Professor of Economics, Chapman University: Severability of Statutes, 62 Hastings L.J. 1495 (2011).

The major premise of Dean Campbell’s article is that “[c]ourts legislate when they engage in ‘severability analysis,’ allowing part of a law to continue in force after having struck down other parts as unconstitutional.” [1495] More precisely,  “making something into law that was not precisely the text that had been approved by Congress and signed by the President is exactly what a court does when it exercises severability authority.” [1498-99]

From this characterization of severance as creating new legislation, the rest of Dean Campbell’s argument follows. Because a presidential “line-item veto” that would accomplish such legislative handiwork without bicameralism and presentment is impermissible, so too is judicial severance that operates just like a line-item veto. Dean Campbell accordingly calls for “the complete abolition of the severability doctrine.” [1497] According to Dean Campbell’s proposed approach, the unconstitutionality of one provision of a bill enacted into law would result in the invalidation of the entire bill of which that unconstitutional provision was a part.

As I have previously argued, the legislative characterization of the severability function is endemic in modern scholarly discourse and unreflectively implicit in existing doctrine. If one accepts Dean Campbell’s premise that severance creates new legislation, then his proposal makes sense as a way of enforcing the bicameralism and presentment requirements for creating new legislation. Dean Campbell’s proposal therefore presents a challenge to all those who accept an excision-based framework for judicial review.

In my view, however, the major premise is incorrect. A judicial refusal to enforce is not equivalent to amending the law or to exercising a judicial line-item veto. “When a court holds part of a statute unconstitutional, it issues a judgment saying so (and, in some cases, an injunction against its future enforcement). By virtue of precedent and preclusion, this judgment and the reasoning in support of it prevent the unconstitutional part of the statute from having legal effect going forward. Nothing about the actual text of the statute changes as a direct consequence of judicial action.” 85 N.Y.U. L. Rev. at 747.

The real challenge for those who advocate inseverability is to justify the transformation of (A) judicial refusal to give effect as law to one provision in resolving a case, into (B) a command that nobody (in the judiciary or otherwise) should give effect as law to any other provisions of the bill that contained the unconstitutional provision. I do not see how that justification of turning (A) into (B) can be done consistently with traditional separation of powers principles.

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PPACA Severability Series, Post 3

Severability doctrine is not only a “discretionary destructive device” that “calls on judges to act, consciously, like legislators,” but it also results in the creation of law without accountability.

Suppose that the Supreme Court holds the so-called individual mandate unconstitutional and fully severable. When insurance companies are stuck with guaranteed-issue and community ratings for sicker people, but without the revenue that comes from insuring healthier people, who is responsible for that? Congress, because it used an unconstitutional mechanism and did not include an inseverability provision? The Court, because it refused to hold the mandate inseverable from these other provisions? There is no good way to answer these questions, because the judiciary’s action is formally based on perceived congressional intent. Both Congress and the Court are responsible, and neither are.

The problem is not simply the existence of a law that Congress never enacted and the President never signed. A holding of unconstitutionality and inseverability that obliterated the PPACA entirely would raise a similar problem of accountability. When small businesses that benefit from tax credits in the PPACA or individuals that benefit from the ban on lifetime caps are deprived of the benefits that they currently enjoy under the PPACA, who do they blame? A case can be made against both Congress and the Court, and each institution also has a plausible defense.

The Supreme Court has often noted the connection between liberty and accountability. An important aspect of liberty is self-government, and self-government requires accountability. That is an important theme of the Court’s federalism jurisprudence. And it also underlies the Court’s recognition that the separation of powers also promotes individual liberty. Consider, for example, Justice Kennedy’s opinion for the Court last term in United States v. Bond, which stated:

Separation-of-powers principles are intended, in part, to protect each branch of government from incursion by the others. Yet the dynamic between and among the branches is not the only object of the Constitution’s concern. The structural principles secured by the separation of powers protect the individual as well.

Within the excision-based framework of modern severability doctrine, there is simply no way for the judiciary to avoid illegitimate law creation or law destruction. And the federal judiciary’s presence in the legislative realm violates the separation of powers. “We Americans have a method for making the laws that are over us. We elect representatives to two Houses of Congress, each of which must enact the new law and present it for the approval of a President, whom we also elect.” Sosa v. Alvarez-Machain (Scalia, J., concurring in part and concurring in the judgment). Once these laws are made, the federal judiciary has a proper role of deciding on their enforceability in cases or controversies. That judicial role is powerful, but limited. The limits come from the federal judicial power itself. For too long, modern severability doctrine  has located within the judicial power an avowedly legislative function. In future posts, I will lay out an alternative approach–the original approach to partial unconstitutionality–more deeply rooted in traditional understandings of the federal judicial role.

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PPACA Severability Series, Post 2

When it comes to severability determinations–especially in the absence of a severability clause–the output of any hypothetical legislative intent test asking what Congress would have preferred is purely fictive. The doctrinal formula that generates it is a verbal shell with its meat scraped out and its insides filled with the fluid of judicial discretion. This failure of existing doctrine to provide an intelligible legal guidance is one reason to stop using it.

An even more fundamental reason for the Supreme Court to keep its hands off this destructive doctrinal tool is rooted in the separation of powers. Simply put, the doctrine calls on judges to act, consciously, like legislators.

The non-judicial nature of an inseverability holding came through clearly at oral argument in the healthcare litigation, although the Justices did not appreciate it at the time. Consider the following portion of the oral arguments, in which Edwin Kneedler of the DOJ presses the claim that the Supreme Court lacks authority to consider the continued enforceability of statutory provisions that the plaintiffs lack standing to challenge:

MR. KNEEDLER: Thank you, Mr. Chief Justice, and may it please the Court: There should be no occasion for the Court in this case to consider issues of severability, because as we argue, the — the minimum coverage provision is fully consistent with Article I of the Constitution. But if the Court were to conclude otherwise, it should reject Petitioners’ sweeping proposition that the entire Act must fall if this one provision is held unconstitutional. As an initial matter, we believe the Court should not even consider that question. The vast majority of the provisions of this Act do not even apply to the Petitioners, but instead apply to millions of citizens and businesses who are not before the Court -­

CHIEF JUSTICE ROBERTS: How does your proposal actually work? Your idea is that, well, they can take care of it themselves later. I mean, do you contemplate them bringing litigation and saying — I guess the insurers would be the most obvious ones -­ without — without the mandate, the whole thing falls apart, and we’re going to bear a greater cost, and so the rest of the law should be struck down. And that’s a whole other line of litigation?

MR. KNEEDLER: Well, I — I think the continuing validity of any particular provision would arise in litigation that would otherwise arise under that provision by parties who are actually -­

CHIEF JUSTICE ROBERTS: But what cause of action is it? I’ve never heard of a severability cause of action.

MR. KNEEDLER: Well, in the first place, I don’t — the point isn’t that there has to be an affirmative cause of action to decide this. You could — for example, to use the Medicare reimbursement  issue is one of the things that this Act does is change Medicare reimbursement rates. Well, the place where someone adjudicates the validity of Medicare reimbursement rates is through the special statutory review procedure for that. And the same thing is true of the Anti-Injunction Act -­

JUSTICE SCALIA: Mr. Kneedler, there are some provisions which nobody would have standing to challenge. If the provision is simply an expenditure of Federal money, it doesn’t hurt anybody except the taxpayer, but the taxpayer doesn’t have standing. That — that just continues. Even though it is — it should — it is so closely allied to what’s been struck down that it ought to go as well. But nonetheless, that has to continue because there’s nobody in the world that can challenge it. Can that possibly be the law?

MR. KNEEDLER: I think that proves our point, Justice Scalia. This Court has repeatedly said that just because there’s — no one may have standing to challenge — and particularly like tax credits or taxes which are challenged only after going through the Anti-Injunction Act, just because no one has standing doesn’t mean that someone must. * * *

JUSTICE SCALIA: But those are provisions that have been legitimately enacted. The whole issue here is whether these related provisions have been legitimately enacted, or whether they are so closely allied to one that has been held to be unconstitutional that they also have not been legitimately enacted. You can’t compare that to — to cases dealing with a statute that nobody denies is constitutional.

MR. KNEEDLER: This case is directly parallel to the Printz case, in our view. In that case, the Court struck down several provisions of the Brady Act, but went on to say it had no business addressing the severability of other provisions that did not apply to the people before [the Court].

The questions posed by Chief Justice Roberts and Justice Scalia here can be distilled to two:

(1) If the Court doesn’t address severability in this case, won’t that leave a mess that the federal judiciary might not be able to be sort out in further litigation?

(2) Should the federal judiciary permit provisions in the statute that nobody can challenge in court to stay in effect as law even though they are “closely allied to one that has been held to be unconstitutional”?

The correct answers to these two questions are Yes and Yes.

Yes, it would create a mess for the Supreme Court to hold the so-called individual mandate unconstitutional without addressing the continued enforceability of other PPACA provisions. But that mess is not the federal judiciary’s problem except to the extent that the enforceability of those other PPACA provisions can be challenged in a case or controversy by someone that they injure in a judicially cognizable way. True, there is no “severability cause of action.” But a regulated entity can, in some circumstances, seek a declaratory judgment and injunction on the ground that a federal statute purportedly applicable to it does not have the force of law. If it were a valid legal argument to say that a statutory provision, itself perfectly constitutional, should not be enforceable because Congress would not have enacted it in the absence of another statutory provision that is unconstitutional, then someone can raise that argument in an appropriate pre-enforcement claim for declaratory and injunctive relief. Under current severability doctrine, that could be a valid legal argument. It ought not to be, because the fact Congress would not have enacted the provision should not be allowed to undo the fact that Congress did pass the provision. But whether this is a valid legal argument and whether it ought to be are two different questions.

Yes, the federal judiciary should leave alone statutory provisions that cause no legally cognizable injury to the parties properly before a federal court in a case or controversy. The doctrines that define the case or controversy requirement set the boundaries of the judicial domain. Anything outside those boundaries is none of the federal courts’ business.

As Justice Scalia recognized in Hamdi v. Rumsfeld, the Supreme Court sometimes adopts a “Mr. Fix-it Mentality” in which the Court “seems to view it as its mission to “Make Everything Come Out Right, rather than merely to decree the consequences, as far as individual rights are concerned, of the other two branches’s actions and omissions.”  The oral arguments over the severability of the so-called individual mandate reveal a Court tempted to play this role.

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PPACA Severability Series, Post 1

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.

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A precedent for excising the heart while leaving the rest of the body standing?

During today’s oral arguments about the severability of Section 5000A, neither the Justices nor counsel could come up with a case in which the Court had left standing the rest of a partially unconstitutional statute after “excising” its “heart.”

Justice Scalia pressed Edwin Kneedler, counsel for the federal government, for an example. Kneedler suggested United States v. Booker, but Justice Scalia rejected it as inapt. Mr. Kneedler then stated that “there is no example,” which led Justice Scalia to say: “This is really a case of first impression. I don’t know another case where we have been confronted with this — with this decision. Can you take out the heart of the Act and leave everything else in its place?”

One example that comes to mind, however, is the federal income tax, which the Supreme Court held partially unconstitutional and inseverable in Pollock v. Farmers’ Loan & Trust Co., 158 U.S. 601 (1895). This was the case later described by Justice Jackson, in The Struggle for Judicial Supremacy, as “a brilliant and smashing victory” for “the opponents of majority rule.” The Court held in Pollock that a tax on income from property was an unconstitutional direct tax. There was no similar constitutional problem with a tax on income from wages and salaries. But the Court held that the income tax was inseverable and therefore entirely unenforceable, not only as to income from property but also as to income from wages and salaries. This was a massive blow to the government. And it is commonly thought that, in Justice Jackson’s words, “the whole Act fell.” But that is incorrect. The income tax was part of a larger Act called the Wilson-Gorman Tariff Act of 1894. In Pollock, the Supreme Court rendered unenforceable sections 27 to 37 of this Act, but not the remainder. It is a judgment call whether the income tax provisions were the “heart” of this Act (just as the relative importance of Section 5000A to the PPACA can be debated as well). But the inclusion of the income tax was important to the overall legislative bargain because it was supposed to raise revenue that would be lost by the lowering of tariff rates. Given the importance of the income tax politically and the high-profile nature of the Supreme Court’s invalidation of it–ultimately leading to the Sixteenth Amendment–perhaps Pollock is the precedent the Court is looking for.

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If it comes to severability, then what? See Sense and Severability by Tobias Dorsey in University of Richmond Law Review.

If you’re interested in the severability of Section 5000A from the rest of the PPACA and would like a refreshingly clear-headed take on severability doctrine generally, check out Sense and Severability, the remarks of Tobias Dorsey at the University of Richmond Law Review’s 2011 Allen Chair Symposium, “Everything but the Merits: Analyzing the Procedural Aspects of the Health Care Litigation.” Dorsey’s prediction from last November  seems even more prescient today than when made:

[I]f we get to severability, I see a two-way split much like the two-way split in Booker, with the Chief Justice and Justice Kennedy joining the three more conservative Justices in holding the mandate unconstitutional, and the Chief Justice and Justice Kennedy joining the four more liberal Justices in taking the Solicitor General‘s point of view.

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Printz and case-based limits on severability determinations

Perhaps the Solicitor General will have more luck with a different aspect of Printz tomorrow?

One of the more pointed lines of questioning directed toward the Solicitor General regarding the constitutionality of Section 5000A came from Justice Scalia with respect to “Proper” in “Necessary and Proper”:

JUSTICE SCALIA: Wait. That’s — it’s both  “Necessary and Proper.” What you just said addresses  what’s necessary. Yes, has to be reasonably adapted. Necessary does not mean essential, just reasonably adapted. But in addition to being necessary, it has to  be proper. And we’ve held in two cases that something that was reasonably adapted was not proper, because it violated the sovereignty of the States, which was implicit in the constitutional structure. The argument here is that this also is — may be necessary, but it’s not proper, because it violates an equally evident principle in the Constitution, which is that the Federal Government is not supposed to be a government that has all powers; that it’s supposed to be a government of limited powers. And that’s what all this questioning has been about. What — what is left? If the government can do this, what — what else can it not do?

GENERAL VERRILLI: This does not violate the norm of proper as this Court articulated it in Printz or in New York because it does not interfere with the States as sovereigns. This is a regulation that — this
is a regulation -­

JUSTICE SCALIA: No, that wasn’t my point. That is not the only constitutional principle that
exists.

GENERAL VERRILLI: But it -­

JUSTICE SCALIA: An equally evident constitutional principle is the principle that the Federal Government is a government of enumerated powers and that the vast majority of powers remain in the
States and do not belong to the Federal Government. Do  you acknowledge that that’s a principle?

GENERAL VERRILLI: Of course we do, Your Honor.

JUSTICE SCALIA: Okay. That’s what we are talking about here.

Justice Scalia’s expansive invocation of quasi-Printz suggests a distinction that he perceives between HHS v. Florida and Gonzales v. Raich.

There is another aspect of Printz that the Solicitor General will rely on tomorrow with respect to severability. That is the Court’s’ refusal to adjudicate the severability of provisions that only burdened parties not before the court. After holding unconstitutional a provision requiring CLEOs (or Chief Law Enforcement Officers) to perform background checks on firearms purchasers, there remained a severability question whether firearms dealers remained obligated to forward to the CLEO the requisite background information and to wait five days before consummating the sale. These steps seemed a pointless formality after the invalidation of the CLEOs’ obligation to do background checks. But the Court’s opinion refused to address the issue:

These are important questions, but we have no business answering them in these cases. These provisions burden only firearms dealers and purchasers, and no plaintiff in either of those categories is before us here. We decline to speculate regarding the rights and obligations of parties not before the Court.

Relying on this aspect of Printz, the federal government has argued that the Supreme Court has no authority to decide the severability of provisions, even the guaranteed issue and community rating requirements, that do not burden the parties to the case.

Printz aside, I think the federal government is right about this as a matter of first principles. Unfortunately, severability has long been an area where first principles have been ignored. Perhaps tomorrow’s arguments will provide a chance for the Court to come face to face with the many problems of its severability doctrine, including the frankly legislative determinations it authorizes the judiciary to undertake.

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Connecting the Anti-Injunction Act and Severability: Reflections on SCOTUSBlog preview of AIA Arguments

Over at SCOTUSBlog, Lyle Denniston has a superb preview of the Anti-Injunction Act issues at stake in day one of the health care arguments.

I have previously argued that there is a straightforward argument for the Anti-Injunction Act’s application to bar the current challenges, and that Congress’s failure to enact an exception should count against the challengers’ and the government’s policy arguments for prompt review. The basic point is that Congress does not think it important enough to act to ensure prompt review, and the Supreme Court should not bend the Anti-Injunction Act to reach the same result.

I have also previously argued (in a piece that NYU L. Rev. published in 2010 but that I posted to SSRN only recently) that severability doctrine is in disarray and that a modified version of the pre-severability-doctrine understanding of partial unconstitutionality can help get constitutional adjudication back into shape.

There is a connection in the litigation between the judicial role that follows from failure to apply the Anti-Injunction Act and the difficulties that will confront the Supreme Court if it needs to decide the severability of the minimum essential coverage provision.

When it applies, the Anti-Injunction Act channels judicial involvement to a post-enforcement setting. The constitutional question at issue in a post-enforcement setting is whether the statutory provision giving rise to an obligation to pay an exaction–26 U.S.C. 5000A–is constitutional. If an individual succeeds in demonstrating that the provision is unconstitutional, it does not follow that any other provision of the PPACA is no longer enforceable. The Court need not ask, much less answer, the severability question in such a setting.

The pre-enforcement setting is much different, in a way that underwrites an avowedly legislative conception of judicial review. The challengers ask the Supreme Court to excise the minimum essential coverage provision and then decide whether the rest of the PPACA should continue to be enforceable. The pre-enforcement setting obscures the judicial nature of the “judicial review” sought, risking collapse into constitutional review of the statute more generally, rather than a properly judicial act of deciding what law governs in the course of resolving a case or controversy. In fact, the challengers have gone so far as to assert that they are challenging the requirement to have insurance entirely apart from the penalty attendant upon failure to comply with the requirement. That sounds an awful lot like constitutional court abstract review rather than federal court concrete review.

By underwriting a departure from the concrete review of the anticipated application of a particular statutory provision to a particular person, the pre-enforcement setting of HHS v. Florida transforms the expected judicial function into one of a thumbs-up or thumbs-down on the legislation considered in itself. If the Supreme Court can consider the legislation in itself, the limitation of its constitutional ruling to the minimum essential coverage provision itself looks somewhat arbitrary. Might as well contemplate enjoining the application of other provisions like guaranteed issue and community rating, right?

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The healthcare litigation: facial vs. as-applied challenges, severability, the Anti-Injunction Act, judicial restraint, and state resistance

The papers from the “Everything But the Merits” symposium on the healthcare litigation held at the University of Richmond School of Law last November (11/11/11) will be published in the March 2012 issue of the University of Richmond Law Review. Draft versions of several are now available on SSRN. The paper with the most immediate relevance to the ongoing litigation is Edward Hartnett’s, which addresses the topic of facial and as-applied challenges.

Here are links to the currently available SSRN versions of the papers:

A. Christopher Bryant (Cincinnati), Constitutional Forbearance

Tobias A. Dorsey (Federal Practice), Sense and Severability

Edward A. Hartnett (Seton Hall), Facial and As-Applied Challenges to the Individual Mandate of the Patient Protection and Affordable Care Act

Elizabeth Weeks Leonard (Georgia), The Rhetoric Hits the Road: State Resistance to Affordable Care Act Implementation

Kevin C. Walsh (Richmond), The Anti-Injunction Act, Congressional Inactivity, and Pre-Enforcement Challenges to Section 5000A of the Tax Code

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Two related non-merits issues to look at in today’s ACA filings

According to the Supreme Court’s December 8 briefing schedule in the challenges to the Affordable Care Act, the opening briefs are due today with respect to everything but the Medicaid issue. Here are a two related non-merits issues to look at in today’s filings:

1. How does the NFIB’s brief address the standing of the individual plaintiffs? The Wall Street Journal reported back in December on the bankruptcy filing of Mary Brown, who was the only plaintiff that the government conceded had standing to challenge Section 5000A (the minimum essential coverage provision). Ms. Brown’s personal circumstances may render her eligible for an exemption from the penalty for non-compliance with the minimum essential coverage requirement in § 5000A. Earlier this week, the Wall Street Journal reported that the NFIB’s lawyers sought to add as individual plaintiffs two more NFIB members. This is an unusual move, and one that the challengers would not have taken without good reason. (That is not to go so far as to say that the additions should be viewed as an implicit concession about a lack of standing without the to-be-added plaintiffs, only that the lawyers viewed the downside of not seeking to add plaintiffs as higher than the downside of doing so.) In a letter filed with the Supreme Court disclosing Ms. Brown’s bankruptcy, the private plaintiffs said that they would explain in their opening brief why Ms. Brown still had standing. Today is the day they will make good on that promise.
2. How does the court-appointed amicus curiae address the Anti-Injunction Act issue? There are several arguments that Mr. Long can make, and it will be interesting to see his assessment of their relative strength by their positioning in the brief.

These two issues may look unrelated on their face, but there is a connection between the AIA issue and Ms. Brown’s standing. One of the arguments that the challengers have previously advanced is that they are challenging the requirement to have insurance but not the penalty for non-compliance. In their view, the mandate is a “free-standing legal requirement” while the penalty is a means of enforcing it. Presumably, this assertion about the internal separability of §5000A with respect to the mandate and the penalty will also be part of the argument for Ms. Brown’s standing. The argument would presumably be that, although Ms. Brown’s financial hardship exempts her from the penalty (under § 5000A(e)), she is still subject to the legal requirement to have minimum essential coverage.

I’m skeptical that these arguments resting on the internal separability of § 5000A succeed. But I will withhold judgment until I see the best presentation of these arguments in the challengers’ briefs.

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Fourth Circuit rejects constitutional challenges to ACA provisions . . . regarding black lung benefits

The Fourth Circuit yesterday rejected constitutional and other challenges to various changes made to the Black Lung Benefits Act by the Patient Protection and Affordable Care (“PPACA” or “Affordable Care Act” or “ACA” or “Obamacare” and so on). Judge Wilkinson wrote the opinion in West Virginia CWP Fund v. Stacy, which was joined in by Chief Judge Traxler and Judge Wynn.

The principal constitutional challenges were substantive due process and Takings Clause claims regarding a statutory provision that extended certain benefits to claims that were filed after January 1, 2005 and pending on or after the date of the ACA’s enactment (March 23, 2010). The challengers sought to distinguish Usery v. Turner Elkhorn Mining Co., 428 U.S. 1 (1976), in which the Supreme Court rejected a due process challenge to the Black Lung Benefits Act. The challengers sought to analogize their challenge to Eastern Enterprises v. Apfel, 524 U.S. 498 (1998), in which five Justices voted to hold unconstitutional a certain retroactive imposition of liability in the coal industry. The five Justices in the Eastern Enterprises majority did not agree on a theory of unconstitutionality. Four found a violation of the Takings Clause, while one (Justice Kennedy) found a substantive due process violation. (The remaining four found no constitutional flaw.)

Judge Wilkinson’s opinion applies Usery v. Turner Elkhorn Mining, distinguishes Eastern Enterprises, and in the course of doing so, also reiterates the Fourth Circuit’s view that the rejection of a Takings Clause theory by five Justices–on the ground that a simple obligation to pay does not amount to a taking–“is more authoritative than the plurality’s conclusion” that the imposition of such an obligation could amount to a taking.

The opinion contains two interesting passages regarding the Affordable Care Act more generally. First, Judge Wilkinson concludes in a footnote that the BLBA amendments in the ACA would survive as severable even if the Supreme Court were to hold the individual mandate unconstitutional (as it has been asked to do). Second, Judge Wilkinson resoundingly rejects, because it threatens the separation of powers, the challengers’ argument that the BLBA amendments only passed due to their inclusion in massive and unwieldy ACA:

[P]etitioner’s argument that the BLBA amendments only passed due to their “inclusion . . . in approximately 2,700 pages of healthcare legislation,” Petitioner’s Reply Br. at 27-28, threatens the separation of powers by inviting courts to scrutinize the process by which a coordinate branch of government goes about its business. Likewise, it invites every loser in a legislative fight to contest not only the constitutionality of Congress’s final product, but the way that Congress went about enacting it. Such a plunge into the depths of Capitol Hill should be undertaken—if at all—only in the most extraordinary of circumstances, circumstances that are plainly not presented here. In sum, the difficulties with petitioner’s view are evident and legion.

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Uncertainty over state health insurance exchanges is another cost of severability doctrine

The federal Affordable Care Act calls for the creation of health insurance exchanges. States can create their own exchanges. But the federal government will step in with its own exchange if a state does not create one.

A story in today’s Richmond Times-Dispatch reports that Virginia Governor Bob McDonell “wants Virginia to operate its own health insurance exchange, but only if the U.S. Supreme Court upholds the federal mandate that all individuals have health insurance.”  According to the story, “McDonnell said he hopes the Supreme Court will strike down the individual mandate, rendering an exchange unnecessary, but he made clear that he wants Virginia to operate the exchange if the law stands.”

The story suggests a direct connection between the constitutionality of the mandate and the need to create health insurance exchanges. But the need to create health insurance exchanges will most likely remain even if the Supreme Court holds that the mandate is unconstitutional. The only way that the health insurance exchanges go away is a holding that the mandate is inseverable from the provisions of law that govern the creation and operation of health insurance exchanges. Unfortunately, severability doctrine–which governs such determinations–is murky and manipulable. The uncertainty about the health insurance exchanges is a direct result of this faulty doctrine. (For my attempt to address the problems with severability doctrine, see Partial Unconstitutionality, 85 N.Y.U. L. Rev. 738 (2010).)

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Richmond Law Symposium on Health Care Litigation

As speculation continues to swirl about the timing and ultimate focus of Supreme Court review of the various rulings to date in the healthcare litigation, the time is ripe for consideration of the procedural aspects of that litigation. Although scholarly and popular attention has focused largely on the constitutional merits, the litigation over the healthcare legislation has raised important questions about the role of states as litigants, the distinction between facial and applied challenges, severability, the federal tax Anti-Injunction Act, and other issues. The University of Richmond Law Review’s 2011 Allen Chair Symposium will bring together experts from state government and academia to explore these important but unheralded issues and to situate the litigation in the broader political and regulatory landscape.

The symposium will take place on November 11, 2011 at the University of Richmond Law School. Details on registration and attendance are available here, with more information about the schedule in the conference brochure.

There are three panels scheduled:

9:30 A.M. The Role of States as Litigants in the Mandate Litigation
E. Duncan Getchell, Jr., Solicitor General of Virginia
William F. Brockman, Acting Solicitor General of Maryland
William P. Marshall, William Rand Kenan, Jr., Distinguished Professor of Law, University of North Carolina School of Law

11:15 A.M. Defining the Scope and Legal Effect of the Challenges to the Individual Mandate
Edward A. Hartnett, Richard J. Hughes Professor, Seton Hall University School of Law
Tobias A. Dorsey, Special Counsel for the United States Sentencing Commission (USSC)
Kevin C. Walsh, Assistant Professor of Law, University of Richmond School of Law

2:00 P.M. Situating the Mandate Litigation in the Broader Regulatory and Political Landscapes
Bradley W. Joondeph, Santa Clara University School of Law, Creator of the ACA litigation blog
A. Christopher Bryant, Professor of Law, University of Cincinnati College of Law
Elizabeth Weeks Leonard, Associate Professor of Law, University of Georgia Law

(For those attending the Federalist Society’s National Lawyers’ Convention, sorry for the conflict. Proceedings will be made available via live webcast for any unable to attend, and the papers will be published in a spring edition of the University of Richmond Law Review.)

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Alternative state standing theory # 2: the individual mandate is inseverable from provisions (such as changes to Medicaid) that directly affect the States

This post continues consideration of the alternative state standing theories advanced in Florida v. HHS but not yet ruled on by any federal court. An earlier post addressed the states’ lead standing theory, which is based on expenditures expected to result from the choices of some individuals to comply with the mandate by enrolling in Medicaid.

The States’ second standing theory relies on the asserted inseverability of the individual mandate from other statutory provisions that directly affect the States. Their Eleventh Circuit brief argues:

[T]he States have standing because they have alleged that the  individual mandate renders the entire Act invalid on non-severability grounds. The  States have standing to raise that argument so long as they allege that any of the  Act‘s provisions causes them injury in fact, as such injury would be remedied by a  declaration that the Act is invalid. See Brock, 480 U.S. at 684 (adjudicating claim that entire statute was invalid as a result of unconstitutional legislative veto  provision, where plaintiffs alleged injury based on other portions of the statute). The States have plainly demonstrated injury in fact caused by the Medicaid and employer mandate reforms, and therefore have standing to seek invalidation of the Act on the ground that the individual mandate is unconstitutional.

In short, the States attempt to use inseverability to leverage their standing to challenge a part of the Act that does apply to them into standing to challenge a part that does not.

I have argued in my Eleventh Circuit amicus curiae brief and in my draft law review essay that this attempted use of inseverability doctrine is unprecedented and impermissible. I will not repeat those arguments word for word here, but instead set forth some of the key moves in the analysis.

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Why the justiciability of the states’ challenge to the individual mandate in Florida v. HHS may matter

If the Fourth Circuit’s interpretation of the Anti-Injunction Act were to be adopted by the Supreme Court, that would knock out all the private party challenges to the individual mandate. That would return attention to the question of whether the states’ challenge to the individual mandate is justiciable.

The Virginia approach of relying on a conflicting state statute has all sorts of problems, including those identified by the Fourth Circuit in Virginia v. Sebelius.

The states in Florida v. HHS have developed additional theories of standing that do not require conflicting state statutes. They have done so because necessity is the mother of invention; the necessity arises from the simple fact that most of the state plaintiffs seeking to challenge the individual mandate do not have an anti-mandate state law like Virginia’s Health Care Freedom Act.

I have argued in an amicus curiae brief in the Eleventh Circuit and in The Ghost that Slayed the Mandate that Florida’s alternative theories do not succeed in establishing the justiciability of the states’ challenge to the individual mandate. The Eleventh Circuit said it did not need to address state standing. The issue was “purely academic,” said they, because at least one private plaintiff had standing and one is enough. I criticized that reasoning in an earlier post that focused on the relationship between inseverability and standing.

I can now add another criticism: It may very well be that there is no subject-matter jurisdiction over the private plaintiffs’ challenges because of the Anti-Injunction Act. If the AIA blocks the private plaintiff challenges, then the only way to reach the merits is by adjudicating the states’ challenge to the individual mandate. The states can likely get around the AIA with South Carolina v. Regan, 465 U.S. 367 (1984). Consequently, the jurisdictional action going forward should focus not only on the AIA but also on the states’ theories for why they can challenge a statutory provision that imposes no obligation on them.

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Some early observations about Florida v. HHS

The Eleventh Circuit’s 2-1 ruling holding the individual mandate unconstitutional, but severable from the remainder of the Affordable Care Act, should come as no surprise to close observers (or careful auditors) of the oral arguments in the case. In fact the ruling was portended by Judge Hull’s first question (if memory serves correctly), which was not about the constitutional merits, but about severability. In any event, here are some initial reactions:

(1) This decision makes Supreme Court review inevitable, most likely in this case.

(2) While most have speculated that the Supreme Court will decide the constitutionality of the individual mandate by the end of June 2012, this decision makes that timing prediction significantly more likely, almost a virtual certainty.

(3) The ruling has no implications for the jurisdictional obstacles facing Virginia in Virginia v. Sebelius. The Eleventh Circuit ruled that it did not need to decide whether the States were proper challengers to the individual mandate because at least one party — a private individual — did have standing.

(4) The ruling likely has very limited implications for the constitutional merits of the Fourth Circuit’s rulings in Liberty University v. Geithner or Virginia v. Sebelius. Given the tenor of oral argument in the Fourth Circuit, it is widely expected that the Fourth Circuit will rule against the constitutional challenge. The Fourth Circuit opinions will have the benefit of being able to address both the Sixth and Eleventh Circuits’ analyses, if the judges so choose.

(5) If the Eleventh Circuit’s ruling were to be affirmed by the Supreme Court, Congress would need to respond. The Eleventh Circuit’s severability analysis (which I believe reaches the right result) creates a terrible scenario for health insurers. The guaranteed issue and community ratings provisions remain, but the individual mandate is no longer operative to force healthy people into the insurance pool. Congress could legislate around this difficulty in a number of ways. The important practical point for present purposes, though, is that Congress would have to do something. Because the results of congressional action are so unpredictable, expect America’s Health Insurance Plans and the Chamber of Commerce (which filed an amicus curiae brief arguing for inseverability) to ratchet up pressure on the severability analysis. As AHIP made clear in its amicus curiae brief (filed in the Fourth Circuit), either (i) a decision upholding the individual mandate as constitution, or (ii) a decision holding the individual mandate unconstitutional and inseverable from the insurance-related provisions, would be preferable to the Eleventh Circuit’s holding of unconstitutional but severable.

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Gluck and Metzger on the severability of the individual mandate

SCOTUSBlog is running an excellent symposium on the constitutionality of the Affordable Care Act. A recent post by Abbe Gluck and Gillian Metzger touches on an important point about the remedy. They first argue that the mandate is not unconstitutional. They then argue that if the mandate is unconstitutional, then it may be severable. They write:

In the context of the Commerce Clause inquiry, the mandate is a well-tailored “necessary and proper” means by which Congress can achieve the ACA’s goals. But that does not necessarily mean that, as a remedial matter, if the mandate falls, the Court need or should do more than simply sever it and leave the rest to Congress.

This observation is accurate. The test for constitutionality under the Necessary and Proper Clause does not line up directly with the test for severability. The point has been clouded by the federal government’s litigation decision to concede the inseverability of the mandate from some of the ACA’s insurance-related provisions. This “concession” is designed to serve two functions: (1) to bolster the case for constitutionality, which may turn on whether the individual mandate is an “essential part” of a larger regulatory scheme; and (2) to increase the cost of invalidating the individual mandate.

My only objection is that Gluck and Metzger do not go far enough, endorsing only the conclusion that the mandate “may” be severable. The case can and should be made that the mandate is severable–a case that could be made along lines I suggested (albeit in a descriptive/predictive rather than forensic mode) in a guest post on Balkinization this past February:

For different reasons, the Court’s pragmatists, minimalists, and textualists have good reason to move severability doctrine away from the sort of backward-looking counterfactual speculation that yielded Judge Vinson’s holding of inseverability (i.e., the determination that the individual mandate was inseverable from the remainder of the Act because Congress would not have enacted the Act without the mandate). While a detailed doctrinal analysis to support this assertion would be more appropriate for another venue, a careful review of the Court’s severability reasoning in United States v. Booker and Free Enterprise Fund v. Public Company Accounting Oversight Board suggests directions in which the Court may be moving the doctrine. Justice Breyer’s pragmatic approach to severability in Booker is more forward-looking and consequentialist than the standard approach. Chief Justice Robert’s approach to severability in Free Enterprise Fund emphasizes the need for clear evidence that Congress intended inseverability; given the typical absence of such evidence, the result of this approach is minimalist with respect to the scope of invalidation (though the pragmatic approach is more likely to be minimalist with respect to practical consequences). Finally, textualist Justices eschew, in other contexts, the sort of exercises in imaginative reconstruction that standard formulations of severability doctrine on their face require. Perhaps they might begin to do so in this context as well. For all these reasons, it is extremely unlikely that the Supreme Court would conclude both that the individual mandate is unconstitutional and also that the remainder of the Act is inseverable.

I provide some broader reasons, not specific to the mandate question, for disallowing inseverability doctrine’s expansion of holdings of unconstitutionality in Partial Unconstitutionality, 85 N.Y.U. L. Rev. 738 (2010).

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