A3_MANHEIM (DO NOT DELETE) 7/4/2016 4:26 PM
2016] BEYOND SEVERABILITY 1835
In one of the most consequential cases heard by the Roberts Court—
National Federation of Independent Business v. Sebelius1—four justices in dissent
attacked not only the specific outcome reached by the majority, but the very
approach those justices took to their judicial role. Accusing the majority of
“vast judicial overreaching,”2 the four argued that the Court had more than
simply erred; it had engaged in “judicial usurpation.”3 What, according to the
dissent, was the nature of this judicial crime? It was construing the Affordable
Care Act in a manner that permitted most of the statute to continue in
operation. More specifically, it was the majority’s application of the so-c alled
“severability” doctrine—a framework for analysis requiring a court to
disregard an unconstitutional statute in whole or in part—that triggered the
impassioned attack. What, then, was the dissent’s preferred, more judicially
restrained alternative? It was to strike down the entire Act. According to the
dissent, complete invalidation of the Affordable Care Act was the only
response consistent with the values that should guide a court engaging with a
congressionally enacted statute: “caution,” “minimalism,” and “judicial
The tension is startling. On the one hand are calls for judicial restraint
and modesty; on the other, a willingness to reach conclusions about statutes
that destroy their operation. Despite the inherent friction in the dissent’s
position, attempts by the majority in National Federation to defend its opinion
against these attacks fell flat—or, at least, they lacked the rhetorical power
churning through the dissent. This was not due to oversight or neglect by the
five in the majority. It turns out it is surprisingly difficult to explain why taking
a more flexible approach to a constitutionally defective statute might not be,
in the words of the dissent, “a more extreme exercise of the judicial power
than striking the whole statute.”5 It is similarly difficult to justify why a court,
when engaging in a more accommodating form of severability analysis, is not
impermissibly “impos[ing] on the Nation, by the Court’s decree, its own new
statutory regime, consisting of policies, risks, and duties that Congress did not
enact.”6 To the contrary, as soon as one accepts that the “severability”
framework controls, it proves extraordinarily difficult to resist accusations like
those lodged by the National Federation dissent. Understanding the
fundamental error of the criticism—and of the National Federation dissent—
therefore requires taking a step back: asking whether “severability” should
apply at all.
1. Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012).
2. Id. at 2676 (joint opinion of Scalia, Kennedy, Thomas, and Alito, JJ., dissenting).
3. Id. at 2668.
4. Id. at 2676.
5. Id. at 2668.