Beyond Severability

Author:Lisa Marshall Manheim
Position:Assistant Professor, University of Washington School of Law
Pages:1833-1892
SUMMARY

Severability is a wrecking ball. Even the most cautious use of this doctrine demolishes statutes in contravention of legislative intent and without adequate justification. It does so through the imposition of an artificially restrictive framework: one that requires that courts respond to a statute's constitutional flaw by disregarding that statute either in whole or in part. In the last few years ... (see full summary)

 
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1833
Beyond Severability
Lisa Marshall Manheim
ABSTRACT: Severability is a wrecking ball. Even the most cautious use of
this doctrine demolishes statutes in contravention of legislative intent and
without adequate justification. It does so through the imposition of an
artificially restrictive framework: one that requires that courts respond to a
statute’s constitutional flaw by disregarding that statute either in whole or in
part. In the last few years alone, this framework has flattened the Voting
Rights Act, threatened the Bankruptcy Code, and nearly toppled the
Affordable Care Act. Yet courts apply severability reflexively, never
demanding justification for its destructive treatment. Scholars, meanwhile,
assiduously debate the particulars of the severability rules without questioning
whether those rules should apply in the first place. This Article, insisting that
severability justify its prominent position among the tools of statutory
construction, concludes that it should be abolished. Courts should replace it
with a fundamentally broader inquiry into, first, the constructions of a
constitutionally defective statute that would diffuse its constitutional defects,
and, second, which among these options the legislature would prefer.
Assistant Professor, University of Washington School of Law. I am indebted to those who
have offered insights in furtherance of this project, including Kate Andrias, Eric Berger, Ryan
Calo, Eric Fish, Brianne Gorod, Sanne Knudsen, Anita Krug, Shannon Weeks McCormack,
Elizabeth Porter, Zahr Said, Kathryn Watts, and David Ziff, as well as the participants at the Seattle
Junior Faculty Forum. Grateful acknowledgement is due to Dane Westermeyer, Thomas Miller,
and the research librarians at the Gallagher Law Library for outstanding research assistance.
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1834 IOWA LAW REVIEW [Vol. 101:1833
I. INTRODUCTION ........................................................................... 1835
II. SEVERABILITY AS A BLITHELY ACCEPTED TOOL ........................... 1839
A. THE UNQUESTIONING ACCEPTANCE OF THE SEVERABILITY
FRAMEWORK BY COURTS AND SCHOLARS ................................ 1841
B. THE APPEAL TO JUDICIAL RESTRAINT THAT COURTS AND
SCHOLARS OFFER IN SUPPORT ............................................... 1845
III. SEVERABILITY AS A DESTRUCTIVE FORCE ..................................... 1850
A. LEGISLATIVE INTENT: AN UNACKNOWLEDGED CASUALTY OF
SEVERABILITYS RESTRICTIVE FRAMEWORK ............................. 1851
1. Construing a statute in a way that expands its
reach ............................................................................. 1851
2. Disregarding (or otherwise altering) a portion of the
statute that is not considered to be the most immediate
source of the unconstitutionality ............................... 1853
3. Treating some portion of the statute as having a
nonstandard meaning ................................................. 1856
4. Construing or applying the statute in a way that gives
the court too much “editorial freedom” ................... 1857
5. Engaging in “application severability” ...................... 1860
B. STATUTORY DAMAGE: HOW SEVERABILITYS DISREGARD OF
LEGISLATIVE INTENT WREAKS HAVOC ON THE LAW ................ 1866
IV. SEVERABILITY AS AN UNJUSTIFIED DOCTRINE ............................. 1872
A. THE LACK OF JUSTIFICATION FOR SEVERABILITYS DESTRUCTIVE
EFFECTS ................................................................................ 1872
B. A PROPOSAL FOR A NEW FRAMEWORK .................................... 1885
V. CONCLUSION .............................................................................. 1891
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2016] BEYOND SEVERABILITY 1835
I. INTRODUCTION
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
modesty.”4
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.
6. Id.

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