How to trim a Christmas tree: beyond severability and inseverability for omnibus statutes.

• Author: Nightingale, Robert L.
• Position: Introduction through II. The Pedigree of Severability Doctrine C. Determining Which Aspects of Severability Doctrine Are Constitutionally Required 1. The Severability-Default Principle, p. 1672-1707

NOTE CONTENTS INTRODUCTION I. OMNIBUS LAWMAKING AND SEVERABILITY A. An Introduction to Severability Doctrine B. Problematic Features of Omnibus Lawmaking II. THE PEDIGREE OF SEVERABILITY DOCTRINE A. The Stakes of Determining Severability Doctrine's Source B. How To Determine the Source of Severability Principles C. Determining Which Aspects of Severability Doctrine Are Constitutionally Required 1. The Severability-Default Principle: Locating Severability Doctrine in Article III Limits on the Judicial Power 2. The Independent-Remainder Principle: Locating Severability Doctrine in Article I, Section 7's Definition of Statutory "Law" 3. The Hypothetical-Passage Principle: Locating Severability Doctrine in Prudential Comity Concerns 4. Distinguishing the Independent-Remainder Principle from the Hypothetical-Passage Principle III. THE CONSTITUTIONAL INCOMPATIBILITY OPTION A. The Need for an Alternative Approach to Severability for Omnibus Statutes B. The German Incompatibility Option C. An American Incompatibility Option 1. How the Incompatibility Option Would Address the Unique Characteristics of Omnibus Statutes 2. How the Incompatibility Option Would Harmonize with Current Severability Doctrine 3. When Judges Should Employ the Incompatibility Option IV. ANSWERING OBJECTIONS TO THE INCOMPATIBILITY-OPTION APPROACH A. Objection One: The Constitutionality of Transplanting the Incompatibility Option into American Law B. Objection Two: The Problem of Legislative Intransigence C. Objection Three: The Effects on Vulnerable Individuals D. Objection Four: The Problem of Uncertainty in the Interim CONCLUSION INTRODUCTION

When the Supreme Court decided National Federation of Independent Business v. Sebelius (NFIB) in 2012, (1) the public and the press focused on the Court's merits rulings. (2) Another important aspect of the opinion received relatively little notice. The four joint dissenters--Justices Scalia, Kennedy, Thomas, and Alito--spelled out the remedy they would have chosen had their merits position prevailed: they would have struck down the Affordable Care Act (ACA), that massive legislative project, in its entirety. (3)

The dissenters invoked a novel legal theory to justify this far-reaching remedy. In general, federal courts presume that a freestanding statutory provision, such as the ACA's individual mandate, is severable from the rest of the statute. As the length and complexity of the statute increases, so does the strength of this presumption--the more expansive a statute, the less problematic it should be to excise an unconstitutional provision. The dissenters in NFIB reversed this presumption. According to the dissenters, the ACA was a lengthy statute containing a multitude of provisions unrelated to its core purpose. The dissenters characterized it as a "Christmas tree" law, with "many nongermane ornaments." (4) They reasoned that, without proof that Congress would have enacted these "ornaments" in the absence of the individual mandate, the entire "Christmas tree" had to fall. (5) Under the dissenters' new theory, the unorthodox bargaining process that generates long, complex statutes--so-called "omnibus statutes"-makes provisions in these statutes presumptively inseverable. The length and complexity of a statute weighs against, rather than in favor of, severability.

Although it appears unlikely that the dissenters' "Christmas-tree" approach will gain much traction, (6) the question of how to determine the severability of omnibus bills remains important to resolve. An increasing number of federal statutes follow the pattern of the ACA. (7) Today's Congress tends to pass long, complex statutes that reflect numerous compromises and bargains. Because omnibus statutes do not fall under the purview of a single congressional committee, they are less likely than ordinary statutes to be internally consistent. (8) Further hindering courts' interpretive enterprise, omnibus statutes are rarely accompanied by clear records of legislative intent. As one congressional staffer recently noted, "[I]f you care about regular order, [omnibus legislation] gets very scary because it's a humongous deal negotiated by people who really don't understand." (9)

Severability will continue to pose a dilemma for courts reviewing massive statutes like the ACA. On the one hand, most omnibus statutes contain a large number of constitutionally unproblematic provisions that a court could cleanly sever from the unconstitutional provisions. (10) On the other hand, severability doctrine forbids courts from altering a statute in ways that conflict with the intent of Congress. (11) When deciding the severability of provisions in a long, intricate piece of omnibus legislation, courts often lack reliable indicia of which provisions Congress thought essential, and which provisions it would not have enacted outside of the omnibus vehicle.

Courts have not yet grappled with this dilemma. (12) The Supreme Court has held numerous provisions in omnibus statutes unconstitutional. In these cases, the Court rarely undertakes an express severability analysis; when it does inquire into severability, it does not grant doctrinal significance to the omnibus nature of the statute. (13) For severability purposes, the Court treats omnibus statutes the same as ordinary statutes.

Like the Court, the scholarly community has not yet addressed the unique challenges of applying severability doctrine to omnibus statutes. Several scholars who have written on severability have discussed omnibus statutes to show why the doctrine must favor severability in at least some instances: in their view, it would be absurd to strike down massive statutes containing a hodgepodge of provisions because of a small constitutional defect in a single provision. (14) Mark Movsesian and John Nagle go further, arguing that the existence of omnibus bills shows that Congress generally intends for courts to sever unconstitutional provisions from otherwise constitutional statutes. (15) In contrast, scholars who attack the presumption of severability attempt to show why total invalidation of an omnibus statute is unproblematic or unlikely to occur. (16)

This scholarship tends to assume that severability is a one-size-fits-all doctrine, that a single approach to severability can serve all statutes. (17) But the literature on severability should not treat omnibus statutes as the bogeyman or reductio ad absurdum of the severability debate. Instead, as this Note argues, severability doctrine can and should be tailored to fit the unique features of omnibus statutes. Omnibus statutes differ from paradigmatic single-purpose legislation in important ways, and courts should take these differences into account when assessing their severability.

After diagnosing the flaws of the current severability doctrine, this Note proposes an alternative approach that would modernize severability doctrine for the age of omnibus statutes. Part I describes the current severability doctrine and explores the quandary that omnibus lawmaking poses for that doctrine. Omnibus statutes differ from regular statutes in three important ways, all with significance for severability doctrine. First, no single congressional intent governs. Second, the provisions are not necessarily related to or dependent on one another. Finally, judges often lack the capacity to prevent spillover effects from findings of partial unconstitutionality.

Part II describes the potential legal bases for the three principles of current severability doctrine: the severability-default principle, that courts should generally only invalidate the unconstitutional portions of partially unconstitutional statutes; the independent-remainder principle, that courts must strike a partially unconstitutional statute down entirely if the remainder is not "fully operative as a law"; (18) and the hypothetical-passage principle, that courts should strike the remainder down unless Congress would have passed it on its own. It reasons that severability doctrine is either constitutional law or federal common law. The distinction matters because courts can modify federal common law for prudential reasons, but cannot change constitutional law as easily. It then traces the history of severability doctrine to determine which of the three principles are constitutional and which are federal common law. Two rules are constitutionally required: the severability-default principle and the independent-remainder principle. In contrast, the hypothetical-passage principle is prudential and may be applied at courts' discretion.

Given this leeway to bypass the hypothetical-passage principle, the Note argues that federal courts should employ a remedy developed by the German Constitutional Court: the constitutional incompatibility option. Part III introduces the concept of constitutional incompatibility and discusses its advantages over the Court's current approach to deciding the severability of omnibus legislation. When using the constitutional incompatibility option, the Constitutional Court declares a statute unconstitutional, but enjoins the effect of that declaration for a defined period of time. The grace period permits--but does not require--the German legislature to revise the law to make it constitutional. At the end of this period, in the event of legislative inaction, the court voids the unconstitutional statute to the extent of its unconstitutionality. The constitutional incompatibility option can serve the principles underlying severability doctrine in cases involving omnibus statutes more faithfully and effectively than the method currently used by American courts. Part IV addresses possible objections to the use of the doctrine of constitutional incompatibility in American law, and explores measures courts could take to mitigate the problems raised by these objections.

The NFIB dissent signaled the need for scholarly discussion about the severability of omnibus...