Severability as Conditionality

• Publication year: 2015

Severability as Conditionality

Eric S. Fish

SEVERABILITY AS CONDITIONALITY

Eric S. Fish^*

The Supreme Court currently operates under the premise that if it finds one part of a law unconstitutional, it can strike down other parts as well. In National Federation of Independent Business v. Sebelius, four justices would have exercised this power to strike down the entire Affordable Care Act on the basis of one unconstitutional provision. But it is not clear where the Court finds this power to declare laws inseverable. And that lack of clarity has created a doctrinal muddle wherein the Court applies several inconsistent tests. In this Article, I seek to clarify the scope of the inseverability power by considering several different theories of its source. Three such theories are implicit in the current judicial doctrine and academic debate about severability: (1) that it is an equitable remedial power, akin to the power to issue a civil injunction; (2) that it is a variant of intentionalist statutory interpretation, wherein courts strike down further provisions of a partially unconstitutional law so as to preserve the legislators' hypothetical intentions; and (3) that it is a judicial contract remedy applied to legislative deals. This Article explores these three theories, teasing out their respective logics and showing that they are implausibly broad and inconsistent with Article III of the Constitution.

This Article then develops and defends a fourth, narrower theory: that a court can declare a statute inseverable only where the legislature has made one part of the statute conditional on the continued validity of another. Such conditionality can most easily be found through explicit inseverability clauses. But it can also be found implicitly (analogous to the implied repeal and implied preemption doctrines) where severing a provision would make nonsense of a statute's language, or where otherwise valid parts of a statute cannot have legal effect or do not serve any purpose without the unconstitutional provision. The main cost of this theory is that it only permits inseverability in limited circumstances, so it does not allow courts to rewrite

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statutes to avoid the perverse consequences of judicial review. The benefits are that the theory is consistent with Article III, and that it prevents judges from acting too much like legislators. Two further implications follow from the conditionality theory: that there must be a party with standing to challenge an inseverable provision before a federal court can strike it down, and that the proper unit of analysis for severability questions is the entire legislative code (rather than a single act or bill).

Introduction............................................................................................1295

I. The Supreme Court's Conflicting Approaches to Severability..................................................................................1300
ii. the dilemma: statutory distortion or judicial Legislating....................................................................................1309
III. What is the Fundamental Unit of Legislation?.....................1313
IV. Three Theories of Severability.................................................1319

A. Equitable Remedy .................................................................... 1319
B. Hypothetical Legislative Intent................................................ 1322
C. Legislative Contract Remedy................................................... 1327

V. Severability as Legislative Conditionality..........................1332

A. The Theory ............................................................................... 1332
B. Finding Conditionality ............................................................ 1336
C. The Need for Standing............................................................. 1343
D. Conditionality Is Not Limited to the Same Bill or Act ............. 1346

VI. Legislative Conditionality in Practice...................................1347

A. Legislative Fixes...................................................................... 1348
B. State Statutes and State Courts................................................ 1352
C. Does Legislative Conditionality Fit the Most Recent Cases? .. 1355

Conclusion................................................................................................1358

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Introduction

In National Federation of Independent Business v. Sebelius (NFIB), the Supreme Court upheld a provision of the Affordable Care Act (ACA) requiring individuals to purchase health insurance.¹ In their dissent, Justices Scalia, Kennedy, Thomas, and Alito declared not only that they would have held this individual mandate unconstitutional, but also that they would have struck down the rest of the ACA in its entirety.² Thus the dissenters would have invalidated provisions of the law establishing health insurance exchanges, raising the income cutoff for Medicaid, prohibiting insurance companies from turning away clients with preexisting conditions, providing benefits for sufferers of black lung disease, and granting the FDA authority to approve biosimilars, among many other things.³ The dissenters would have done so despite the fact that these provisions were perfectly constitutional, that they could have been enacted and enforced without the individual mandate, and that none of the parties before the Court had standing to challenge them.⁴

Where did the dissenters find this awesome power? It is taken for granted in American legal thought that federal judges have the authority to strike down an entire statute because part of it is unconstitutional. But it is not clear where such a power comes from. Why should the invalidation of one part of a statute let a court strike down other, perfectly constitutional provisions? In doing so is the court employing an intrinsic judicial power to mark its red pen all over partially invalid laws? Or is it merely engaged in statutory interpretation, trying to preserve the legislators' intentions after deleting part of their product? Because we lack a settled account of why judges can make statutes inseverable, judges have had little guidance in determining the scope and proper exercise of this power. This has created a doctrinal muddle. The Supreme Court has developed several different tests to determine severability, without any apparent unifying logic. It sometimes looks to whether the statute still works the way the legislature intended,⁵ sometimes to whether the

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legislature would hypothetically have enacted the law without the invalid provision,⁶ sometimes to the presence of a severability clause,⁷ and sometimes to whether the provisions are capable of functioning independently.⁸ Yet when one follows the Court's analysis in particular cases, all it seems to be doing is deciding whether severability is desirable as a matter of policy. As Robert Stern's classic 1937 article observed, "the Court can easily hold any statute separable or inseparable, as it chooses."⁹

Academics have also treated the inseverability power as a given, without accounting for its source. It is a legal Beetlejuice—say its name and it appears, but no one knows where it comes from. There is vigorous debate about the proper scope of severability. Some scholars call for the courts to sever unconstitutional provisions absent a clear legislative statement to the

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contrary.¹⁰ Others argue that the courts should rarely sever.¹¹ Still others argue that courts should always (or should never) treat severability (or inseverability) clauses as controlling.¹² Dean Tom Campbell, a former member of Congress, has taken the position that no part of a statute should ever be deemed severable—that if even a tiny, inconsequential provision is held unconstitutional the whole thing must fall.¹³ All of these academic commentators defend their preferred approaches by appealing to principles of judicial interpretation, separation of powers concerns, and normative views about the proper role of the judiciary. But none of this work has answered the fundamental question of where judges find this power in the first place.

This Article seeks to answer that question. It does so by articulating three different theories of the federal judicial authority to declare statutes inseverable, rejecting each of these theories, and then showing that a fourth theory is the most plausible account of the inseverability power. Each of the initial three initial theories is, to a greater or lesser extent, implicit in the existing judicial and academic commentary on severability. However they

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have not heretofore been fully described or explicitly distinguished. The first theory is that federal judges have an equitable remedial power to strike down or edit partly unconstitutional statutes. The second theory (and the theory that best fits the Supreme Court's current doctrinal tests) is that severability is a form of hypothetical intent-based statutory interpretation, where the reviewing court asks whether all of a statute's remaining provisions still further the goals of the legislature, and "interprets" the statute to invalidate those provisions that do not. This second theory is premised on the belief that if the legislature had known the one provision was unconstitutional it would have preferred that the others fall as well. The third theory is that legislative deals are enforceable as contracts, and that judges can make statutes inseverable to guarantee legislators the benefit of their bargain. The final theory, which this Article defends, is that inseverability is the product of a legislative decision to make one part of a statute conditional on another part of a statute. A legislature can create such conditionality explicitly through an inseverability clause.¹⁴ But it can also do so implicitly by writing a statutory provision so that its text is...