Let Sleeping Dogs Lie: Defending Severability After Murphy, Collins, and Seila Law.

• Author: Hilbert, Gregory

CONTENTS INTRODUCTION I. BRIEF HISTORY OF SEVERABILITY A. Development of the Doctrine B. Recent High-Profile Applications of Severability Doctrine C. Severability and Structure in Administrative Agencies II. SEVERABILITY DOCTRINE UNDER ATTACK III. DEFENDING SEVERABILITY A. Severability Doctrine's Legitimacy--Responding Directly to Justice Thomas in Murphy and Seila Law B. Addressing Courts' Inconsistent Application of Severability IV. IMPROVING SEVERABILITY CONCLUSION INTRODUCTION

The Patient Protection and Affordable Care Act (1) is 907 pages long in the United States Statutes at Large. (2) The Dodd-Frank Wall Street Reform and Consumer Protection Act is 848 pages long. (3) Though the number of bills that Congress passes has declined in recent years, both the total and average page length of those bills have increased. (4) When a statute is several hundred pages long and incredibly complex, what should a reviewing court do when confronted with a single section, page, or clause that offends the Constitution?

For at least 150 years, the widely accepted answer has been that the reviewing court should "sever" the unconstitutional provision from the rest of the law. (5) These cases are "governed by the normal rule" (6) that courts should prefer partial over total invalidation of a legislative act. When confronted with a statute's unconstitutional clause, a court must ask "whether Congress would have wanted the rest of the [statute] to stand.... Unless it is 'evident' that the answer is no, we must leave the rest of the [statute] intact." (7)

But recently this long-settled principle (8) of judicial review has come under attack. (9) Critics claim that the severability doctrine is "dubious" (10) and is "in tension with traditional limits on judicial authority." (11) They argue that severing an offending provision from a statute is not an exercise in judicial humility, but rather an unconstitutional judicial usurpation of power. (12)

Whatever the weaknesses of the severability doctrine--and there are many (13)--it is too late in the day to discard 175 years of Supreme Court precedent upon which legislatures continue to rely. Severability analyses are entrenched in our Article III jurisprudence--at this point a "systematic, unbroken ... practice" (14) of federal courts. (15) Opponents of the doctrine cannot win the day by resorting solely to first principles. (16) That said, the doctrine can and should be improved to make its application less political and more predictable. (17)

This Note explores some such possible improvements. But first, Part I offers a brief history of the severability doctrine. Part II examines recent criticisms of the doctrine. Part III responds to the recent criticisms and argues that although severability principles in practice have left much to be desired in terms of clarity and consistency, severability is defensible as a doctrine.

1. BRIEF HISTORY OF SEVERABILITY

   1. Development of the Doctrine

      Severability is nearly as old as judicial review itself. In Marbury v. Madison, (18) the Supreme Court partially invalidated the Judiciary Act of 1789. (19) The last clause of section 13 of the Act impermissibly purported to enlarge the Court's original jurisdiction, and so the Court invalidated that provision while leaving the rest of section 13 intact, as well as the rest of the Judiciary Act of 1789. (20) Though the Court did not use the terminology that has become common in severability analyses, "everybody at that time in history, and everyone since, simply assumed that the provision held invalid in Marbury could be (and was) severed from the remainder of the Act." (21)

      It is unsurprising that contemporaries never questioned that section 13's unconstitutional provision could be excised from the rest of the Act. Indeed the Supreme Court, in its early decisions, "assumed as obvious" that a single unconstitutional clause would not render an entire legislative act inoperative. (22) In Bank of Hamilton v. Dudley's Lessee, (23) for example, Chief Justice Marshall wrote: "If any part of the act be unconstitutional, the provisions of that part may be disregarded while full effect will be given to such as are not repugnant to the constitution of the United States or of the state...." (24) State courts of last resort similarly assumed that a single offending provision did not necessitate invalidating an entire statute. (25)

      Scholars consider Warren v. City of Charlestown (26) to be the first case in which a court held as inseverable a statute with an offending provision, such that the entire act must fall. (27) In Warren, the legislature enacted a law to merge the cities of Charlestown and Boston. (28) The law's challengers argued that Charlestown residents were not afforded proper political representation in the new township. (29) The Supreme Judicial Court of Massachusetts set forth a sort of severability test by acknowledging that when a legislative act has both constitutional and unconstitutional provisions, "the parts, so held respectively constitutional and unconstitutional, must be wholly independent of each other." (30) Thus, if the valid text is intertwined with or dependent on the invalid provision "as to warrant a belief that the legislature intended them as a whole, and that, if all could not be carried into effect, the legislature would not pass the residue independently ... [then] all the provisions which are thus dependent ... must fall." (31) The court struck down the entire act as unconstitutional and void. (32)

      Warren stands for the proposition that a reviewing court decides whether the provisions of a partially unconstitutional act are sufficiently independent of each other, and considers a counterfactual: would the legislature have passed the legislation without the unconstitutional provision(s)? Other state courts of last resort adopted tests with the same principles, and this Warren formulation was met with widespread approval. (33)

      In Allen v. City of Louisiana, (34) the United States Supreme Court adopted Warren's severability formulation. Quoting Chief Justice Shaw's opinion in Warren, the Court captured the essence of the inquiry: "The point to be determined in all such cases is whether the unconstitutional provisions are so connected with the general scope of the law as to make it impossible, if they are stricken out, to give effect to what appears to have been the intent of the legislature." (35) Within fifty years, the severability test based on legislative intent was routine. (36)

      Important to the discussion of the severability doctrine is Congress's subsequent use of severability clauses in statutes. Lawmakers include severability clauses in legislation to "guide courts" on the question of "whether to sever the defective provision or to invalidate the entire statute." (37) A typical severability clause may read as follows: "If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the validity of the remainder of the Act and the application of such provision to other persons and circumstances shall not be affected thereby." (38) These severability clauses evidence Congress's "long-continued acquiescence" to the judiciary's use of severability as a bedrock legal principle in adjudicating cases. (39)

   2. Recent High-Profile Applications of Severability Doctrine

      The Supreme Court has recently reaffirmed its use of the severability doctrine in many high-profile cases--approaching the question of whether a statute can stand without an unconstitutional provision. Though the Court has come out on both sides of the question depending on the dispute, (40) its application of the doctrine has been mostly consistent. Three recent examples are illustrative in an historical analysis of the severability doctrine: Immigration and Naturalization Service v. Chadha, (41) Alaska Airlines v. Brock, (42) and National Federation of Independent Business v. Sebelius. (43)

      Chadha was concerned with the constitutionality of a unicameral legislative veto. By way of background, the Immigration and Nationality Act as passed gave the executive branch the authority to "allow a particular deportable alien to remain in the United States." (44) The Act also authorized one house of Congress to "invalidate" that decision, thereby reinstating removal proceedings. (45) The Court held that this legislative-veto provision was unconstitutional because it failed the Constitution's bicameralism and presentment requirements. (46) The Court severed the offending provision from the Act, (47) even though Congress argued that the provision was inseverable. (48)

      Four years later, in Alaska Airlines v. Brock, (49) the Court considered the constitutionality of another legislative-veto provision--this time in the context of airline regulation. (50) At issue was the Employee Protection Program (EPP) that was included in the Airline Deregulation Act of 1978. (51) Congress wanted to ensure that airline industry employees would not be unduly harmed by deregulation, and created the EPP to protect "employees who had been employed by a certified carrier for at least four years" as of the effective date of the Act. (52) The Act gave the Secretary of Labor authority to promulgate rules to administer the EPP, (53) but the Act provided that "any final rule issued ... shall be submitted to Congress and shall become effective after 60 legislative days, unless during that 60-day period either House of Congress adopts a resolution disapproving the rule." (54) The Court, relying on Chadha, held that the legislative-veto provision, though unconstitutional, was severable from the rest of the Act. (55)

      One might argue that the severability doctrine's biggest recent impact, at least outside of the administrative law context, was in National Federation of Independent Business v. Sebelius. (56) On the merits, the Court considered whether two provisions of the Affordable Care Act (ACA) were...