Author:Folio, Ryan M.

Suppose that you are a textualist federal judge. In front of you is a federal statute containing a provision that is best read as unconstitutional. You have two options. You can discard the best interpretation and adopt an alternative interpretation that avoids the constitutional problem. Or you can adopt the best interpretation and declare the provision unconstitutional. Then, in order to determine whether you should invalidate the statute in whole or in part, you have to speculate about whether Congress would have enacted the statute without the unconstitutional provision. Which option do you choose?

Federal judges face this choice routinely in our current regime of constitutional adjudication. Those who choose the first option--constitutional avoidance--will sometimes confront charges of having impermissibly "rewritten" the statute through interpretation, which is to say, outside Article I, Section 7's procedures. And those who choose the second option--severability--will have to gaze into a crystal ball in an attempt to determine whether Congress would have passed a version of the statute that, in all likelihood, Congress never considered. They too risk charges of having rewritten the statute.

National Federation of Independent Business v. Sebelius (1) illustrates this dilemma, in which judges must choose between two kinds of rewriting, when judges should not be rewriting at all. There the Supreme Court considered the constitutionality of the Affordable Care Act's (ACA) Individual Mandate and Medicaid Expansion. (2) Chief Justice Roberts conceded that the best reading of the Mandate was that it commanded individuals to purchase insurance. (3) But because that reading would result in a finding of unconstitutionality, he chose to read the Mandate as a tax. (4) In a joint dissent, four Justices accused Chief Justice Roberts of having rewritten the Mandate. (5)

Yet the dissenters' choice to give the ACA its best reading came at a cost. Because the dissenters concluded that the Mandate and Expansion were both unconstitutional, (6) severability doctrine required them to speculate about whether Congress would have enacted the rest of the ACA without those provisions. Severing the Mandate and Expansion, though, risked rewriting the statute, they said. It was a legislative power that the Court could not exercise. (7) The dissenters thus concluded that the most restrained course of action would be to invalidate the ACA entirely. (8)

This Note argues that the Court should repudiate the avoidance and severability doctrines. Both doctrines assume the existence of an unexpressed legislative intent that judges can discover. But the rise and influence of modern textualism have challenged that assumption to such an extent that a significant portion of judges and lawyers are now skeptical of legislative intent. As a result of that skepticism, the doctrines have begun to look different. Namely, they appear to engage courts in the exercise of legislative rather than judicial power, and a judge's quest for legislative intent can appear to mask the expression of policy preferences. The ACA Cases--NFIB and King v. Burwell (9)--suggest that the prevailing judicial approach to addressing the unconstitutionality of statutes creates tension with the common textualist-inspired skepticism among judges and lawyers about legislative intent. That expanding skepticism has the effect of making avoidance and severability appear illegitimate because they seem to be forms of judicial legislation.

Changing theories of law have prompted sweeping doctrinal reform in the past. In Swift v. Tyson, (10) in 1842, the Court held that the Rules of Decision Act did not require federal courts sitting in diversity to apply state court decisions in matters of general common law. (11) Because Justice Story, writing for the Court, conceived of the common law as a transcendental body of law that all judges could discover, he reasoned that the Act authorized federal courts to provide the rule of decision themselves. (12)

But by the eve of the Court's decision in Erie Railroad Co. v. Tompkins, (13) in 1938, the conception of the common law reflected in Swift had changed. Legal positivism had challenged the notion that the common law was "discovered" as opposed to "made." (14) This shift in legal thought brought constitutional concerns into view: if the common law was made, then federal courts should not be making law in the place of state legislatures. (15) The Court declared that "[t]here is no federal general common law" and gave the power to provide the rule of decision to the states. (16)

Erie charts a two-part pattern that Professor Lawrence Lessig calls the "Erie-effect." (17) First, contestation of a certain practice that courts engage in makes that practice seem "illegitimate." Second, the Court reallocates the practice to another legal institution in order to avoid incurring an illegitimacy cost to courts. Thus, Erie reflects a development wherein legal positivism's contestation of the notion of a transcendental body of law that all judges could discover rendered illegitimate the federal courts' practice of "discovering" common law under Swift. The Court then reallocated the power to provide the rule of decision, from federal courts to the states.

The first part of the Erie-effect has already happened to the doctrines of avoidance and severability: changes in legal thought surrounding statutory interpretation have altered the appearance of these judicial doctrines so that they now seem legislative and therefore illegitimate. (18) This Note argues that the Court should complete the Erie-effect pattern by repudiating avoidance and severability and replacing them with a regime in which courts give statutes their best readings. If a statute is unconstitutional, the Court should invalidate the unconstitutional part. By ceding to Congress some of the power to address unconstitutional statutes, this proposal aims to reduce the illegitimacy cost that the Court incurs under our current regime.

The argument proceeds in five parts. Part I briefly introduces the doctrines of avoidance and severability. Part II argues that the rise and influence of modern textualism has challenged the doctrines' intentionalist assumptions to such an extent that the assumptions are no longer a judicial default. Part III discusses The ACA Cases in order to argue that because the use of avoidance and severability appears to engage the Court in judicial legislation, the doctrines impose an illegitimacy cost on the Court. Part IV argues by analogy to Erie that the Court should cede to Congress some of its current power to address unconstitutional statutes and proposes that the Court repudiate avoidance and severability. Part V concludes.


    1. Constitutional avoidance

      Constitutional avoidance is the principle that courts should decide cases on nonconstitutional grounds whenever possible. Three types of avoidance should be distinguished (19) for the sake of clarity:

      * Procedural avoidance: "[N]ormally the Court will not decide a constitutional question if there is some other ground upon which to dispose of the case." (20)

      * Classical avoidance: "[A]s between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, [the Court's] plain duty is to adopt that which will save the Act." (21)

      * Modern avoidance: "[W]here a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, [the Court's] duty is to adopt the latter." (22)

      Procedural avoidance requires a court to order the issues for adjudication so as to obviate the need for a constitutional ruling. Classical and modern avoidance each allow a court to adopt an alternative interpretation of an ambiguous statute, provided that the interpretation is plausible. They differ in the kind of doubt they require: whereas modern avoidance requires potential unconstitutionality, classical avoidance requires actual unconstitutionality. As its name connotes, modern avoidance is more prevalent today than classical avoidance. (23)

      By "avoidance," this Note refers to both classical and modern avoidance, unless otherwise noted. (24)

    2. Severability

      Severability is the inquiry that governs how much of a partially unconstitutional statute a court should invalidate. It results in a determination either that the statute is "severable"--in which case the court invalidates only the statute's unconstitutional provisions or applications--or "inseverable"--in which case at least some of the rest of the statute is invalidated. Severance of provisions differs from severance of applications. (25) The former refers to invalidation of statutory language, whereas the latter refers to cases in which a court declares a statute unconstitutional as applied.

      The current test provides that a statute is severable if (1) Congress would have enacted the remaining provisions of the statute without the unconstitutional provision, and (2) the remaining provisions of the statute can operate independently of the unconstitutional provision. (26) The second prong focuses on whether the remaining provisions can operate in "a manner consistent with the intent of Congress." (27) Thus, the prongs are related: whether remaining provisions can operate independently is evidence of whether Congress would have enacted them alone. (28)

      Courts often apply one or more presumptions in conducting severability analysis. Historically, courts have vacillated between presumptions of severability and inseverability, but the current practice is a general presumption of severability. (29) A presumption of severability also applies where Congress includes a severability clause in a statute. Such clauses typically state that if any provision or application of the statute is held unconstitutional, the remainder of the statute...

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