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

• Author: Nightingale, Robert L.
• Position: II. The Pedigree of Severability Doctrine C. Determining Which Aspects of Severability Doctrine Are Constitutionally Required 2. The Independent-Remainder Principle through Conclusion, with footnotes, p. 1708-1743

2. The Independent-Remainder Principle: Locating Severability Doctrine in Article I, Section 7's Definition of Statutory "Law"

   This Section traces the origins of the independent-remainder principle of the Alaska Airlines doctrine: judges must strike down the remaining portions of partially unconstitutional statutes unless they are "fully operative as a law." (162) It analyzes the cases in which the Supreme Court developed this principle. Based on these cases, it argues that the principle is constitutionally required by the Court's understanding of Article I, Section 7 of the Constitution (163): judges may not constitutionally rewrite federal statutes, even to save them, because only statutory provisions that go through bicameralism and presentment are valid law.

   First, let us consider an obvious question. If the original understanding of Article III contemplates that courts will strike down statutes only to the extent of their unconstitutionality, one might wonder: are the second and third principles of the Alaska Airlines doctrine unconstitutional? These principles, after all, direct courts to go beyond the original understanding of severability; in some cases, courts may strike down a partially unconstitutional law in its entirety.

   The reason for this apparent evolution is that the independent remainder and hypothetical passage principles of the Alaska Airlines doctrine emerged in response to changing conditions. The shift in the Court's approach to severability in the late nineteenth century was a result of its increasing willingness to exercise its powers of judicial review. (164) The federal courts invalidated very few federal statutes in their early years. The more a court strikes down statutes, the more the hard cases of severing unconstitutional from constitutional provisions will present themselves--in particular, cases where a statute functions poorly in the absence of its unconstitutional portions. None of the Founding-Era cases presented such a concern. In Marbury v. Madison, for example, it was easy for the Court to conclude that the Judiciary Act of 1789 continued to function as law after excising the invalid mandamus jurisdiction provision. (165) Subsequent developments--and in particular, increasingly complex statutes--have forced the federal courts to clarify when the remainder of severed statutes can qualify as valid law. When doing so, the Court did not supersede the original understanding of severability; it simply addressed novel questions about severability doctrine's metes and bounds that did not arise in Founding-Era dockets. The federal courts developed the independent-remainder principle in response to these novel questions.

   To figure out whether the second Alaska Airlines principle is constitutionally required, we must understand how it developed. The phrase "fully operative as a law" first appeared in the Supreme Court's jurisprudence in 1894. (166) The Court had developed the principle two decades earlier, however, in a line of cases including United States v. Reese, (167) Keokuk Northern Line Packet Co. v. City of Keokuk, (168) and Albany County Supervisors v. Stanley. (169) In those cases, the Court stated that the remainder of a partially unconstitutional law must be struck down unless the constitutional provisions are "severable" from the unconstitutional ones (170)--or, in other words, unless they are "unaffected" by the excision and can "stand alone" as law. (171)

   Although these early cases did not provide much detail about what the terms "severable" or "fully operative as a law" meant, the Court intended them to indicate that judges may not "give to the words used by Congress a narrower meaning than they are manifestly intended to bear." (172) Excision of unconstitutional statutory provisions or applications in accordance with the severability-default principle necessarily does violence to a congressionally enacted text: courts decline to enforce the whole law as written. Unless Congress included explicit instructions about severability, such as a severability clause, "nothing in the language of [a] statute" will "authorize" a court's "distinction" between constitutional and unconstitutional applications or provisions. (173) A court could, in theory, always rewrite a partially unconstitutional statute to the point that it becomes constitutional, and never have to declare a law inseverable. (174) The independent-remainder principle stands for the proposition that there are limits on this judicial violence: the severability-default principle does not license courts to usurp the legislative role.

   Subsequent cases have fleshed out how much judicial rewriting is too much. In Hill v. Wallace, (175) the case cited by Alaska Airlines as an example of the independent-remainder principle at work, the Court invalidated an otherwise constitutional provision of the Future Trading Act because a different, unconstitutional provision was so intertwined with it that the constitutional portion could not fully operate as law without the unconstitutional section. (176) Section 4 of the Act placed a tax on futures contracts for grain. (177) The tax was subject to several exceptions, including when the futures contract was made "through a member of the Board of Trade designated by the Secretary of Agriculture as a contract market." (178) To receive this designation, the Board of Trade had to comply with regulations issued by the Secretary. (179)

   The Court applied the independent-remainder principle in its holding. The Court found that Congress exceeded its power under the Taxing Clause in enacting the tax in section 4. (180) As a result, the Court invalidated the regulations promulgated by the Secretary. The Court found that these regulations were "so interwoven" with the unconstitutional tax that "they can not be separated." (181) Because of the way the Act was structured, the Secretary's power to issue regulations would have made no sense in the absence of the unconstitutional tax provision. To make the Act coherent, the Court would have had to reinterpret the Act to give the Secretary freestanding authority to issue regulations governing contract markets. The need for such extensive judicial revision meant that the regulations were not operative as law on their own.

   The constitutional provisions that undergird the independent-remainder principle are Article III (182) and Article I, Section 7's definition of statutory "law." (183) Article I, Section 7 lays out the process by which Congress may pass "bills" and create statutory "law." (184) Valid federal legislation has to go through the presentment procedures that the Section outlines: both Houses of Congress must pass an identical bill that the President must sign. (185)

   The Supreme Court's Article I, Section 7 jurisprudence indicates that these are the only procedures by which statutory law may constitutionally be made. Notable cases in this line of jurisprudence include INS v. Chadha (186) and Clinton v. City of New York. (187) In both of those cases, the Court conceived of Article I, Section 7 as a guarantor of the separation of powers. (188) Whether a one-house resolution originating in Congress, as in Chadha, or a line-item veto by the President, as in Clinton, legislation that does not pass through bicameralism and presentment undermines the constitutional balance created by the Framers. (189) A bundle of provisions must go through presentment together. If another branch is responsible for authoring legislation, the legislation is unconstitutional. Clinton shows that this principle applies even when another branch removes portions of legislation passed by Congress. (190)

   The independent-remainder principle relates directly to Article I, Section 7. If a law is not workable as a result of partial judicial invalidation--if it makes so little sense as an independent piece of legislation that no judge can apply it without rewriting it--then courts should strike it down. Otherwise, by rewriting the statute to save it, courts would be adding language that did not go through the Article I, Section 7 presentment procedures. (191)

   From its earliest severability cases, the Court's explication of the independent-remainder principle suggests that it understood the Constitution to require that principle on presentment grounds. In United States v. Reese, one of the first cases to apply the "fully operative as a law" concept, the Court stated that extensive judicial revision of a statute as part of a severability determination "would, to some extent, substitute the judicial for the legislative department of the government.... To limit this statute in the manner now asked for would be to make a new law, not to enforce an old one. This is no part of our duty." (192) The judiciary, reasoned the Reese Court, may not be the author of legislation. Otherwise, it would be acting as a legislature, in violation of the constitutional principle that Congress is the sole author of legislation. (193)

   Recent cases have continued to link the independent-remainder principle of Reese to broader constitutional ideas regarding the separation of powers under Article I, Section 7. In Ayotte, for example, the Court described the independent-remainder principle as arising out of courts' "limited ... constitutional mandate" that prevents them from engaging in "quintessentially legislative work" and "invasion of the legislative domain." (194) It is hard to see how the Constitution, as the Court has interpreted it, could not require such a principle. The independent-remainder principle is a direct result of the "finely wrought and exhaustively considered [presentment] procedure" (195) that preserves the balance of powers. It is a constitutional principle.

3. The Hypothetical-Passage Principle: Locating Severability Doctrine in Prudential Comity Concerns

   The same cannot be said for the hypothetical-passage principle of the Alaska Airlines doctrine. According to that...