Understanding Severability
I recently received this excellent question from a reader:
I have heard you repeatedly on different media outlets including Ricochet podcasts and I greatly respect your opinion. I have no constitutional or legal background, but something about last week's Supreme Court discussions has stuck in my head and doesn't make sense.
Why is it constitutional for judges to carve up legislation when one component is deemed to be unconstitutional when the president cannot carve out legislative items using the line item veto? I understand the arguments against the line item veto, but I don't understand why they don't apply to the notion of severability and the judiciary. In both cases, what winds up as the resulting law does not meet the constitutional definition - passed by both houses of Congress and signed by the President.
My current fear is that the Court just decided they could do this, and no one has ever challenged that ... and who would you challenge it to? It seems that the society and government we have simply believes that if the Supreme Court does something, like certain Papal statements, it is infallible and is, by definition, constitutional.
Can you help?
I think the reader raises a great point. It seems to me that it is a greater exercise of judicial power for courts to sever parts of a law as unconstitutional, but to leave other parts of it intact. To sever a law requires a court not just to rewrite a law, but to try to reconstruct what Congress would have done if it had considered whether any part of the law was struck down. A court would have to try to rebalance the delicate compromises behind any significant legislation. Congress can easily fix the problem by attaching a severability clause to any legislation or by enacting a general severability statute that could provide the default for all laws. Until then, the courts give greater respect to the legislature by asking Congress to make clear its own wishes, rather than letting the courts freelance the answer.
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May '10
Re: Understanding Severability
If Congress did not include a severability clause in a particular bill, then SCOTUS should be required to uphold or deny the entire bill. My reasoning is detailed here.
Jun '10
Re: Understanding Severability
Justices are experts at making laws constitutional. They're not necessarily experts, or even well-suited, to making laws practical and enforceable in the real world.
Feb '12
Re: Understanding Severability
Thanks, that makes complete sense. But given that a severability clause was not included in Obamacare, how could the judges even consider severing anything without looking like they are mind reading what Congress might have meant to do?
Mr Yoo--another question, maybe for a later post. For those of us who are not legally educated, a little background on 'stare decisis' please? How does one avoid taking a prior bad decision and just making it worse? Thanks.
Jan '12
Re: Understanding Severability
Mr Yoo,
That was my question - thank you for the reply here directly on Ricochet. And Aaron, thank you for the reply on my earlier post that you link to here. I now better understand the situation if a severability clause is included and agree that is constitutional. Essentially, both houses of Congress and the President are passing the legislation as is AND passing it if a part is stricken as unconstitutional.
My main point isn't that the court can't be expected to mind-read Congress, but that they shouldn't be allowed to. The end result is something that does not fit the definition of a law under the Constitution.
Subsequently, where does this power come from? Historically, when was it first invoked and was it challenged then?
Dec '10
Re: Understanding Severability
Isn't a severability clause just an admission by congress that they only hope their "laws" are constitutional?
Mar '11
Re: Understanding Severability
I find Prof. Yoo's analysis astute and difficult to argue with - yet I fear that the Court will be very tempted to sever the individual mandate/pre-existing conditions segment of the PPACA for political reasons.
Given how front-loaded Obamacare is with popular goodies, combined with the Court's aversion to making politically unpopular decisions (and Justice Robert's call for judicial restraint), there will be a strong incentive to cut out as little as possible. This was obviously by design: Obamacare was written without a severability clause to lure the Court into a high-stakes game of chicken. If the Court throws out the entire law, there is a high probability in so doing that they will throw the election at all levels to the Democrats.
Feb '12
Re: Understanding Severability
I couldn't agree more. I'm surprised this question hasn't gotten more attention from Supreme Court commentators. Perhaps it will now because of your post. Thank you.
Feb '11
Re: Understanding Severability
It seems to me that if Congress had to assert severability with every multi-section bill, a large bill could require nearly endless permutations.
If you have four items in a bill, Congress would have to specify what happens if any one, any two or any three might be struck down. That's fourteen possibilities. Just imagine all the options with a bill the size of Obamacare.
Feb '11
Re: Understanding Severability
Comparing this to the line-item veto is brilliant. After all, the President is sworn to uphold the Constitution no less than is the Supreme Court.
So if he wants to exercise a line-item veto due to Constitutional issues (rather than policy issues), why shouldn't he have just as much authority as the Supreme Court to do so? And if not, then it should cut both ways.
May '10
Re: Understanding Severability
I still like the idea of finding a way to put the law into suspended animation so that it is useless until Congress acts again, if the Court is reluctant to kill outright, stall it without the hue and cry. As discussed here on Adam Freedman's post.
Jan '12
Re: Understanding Severability
How is "suspended animation" different then from killing it? If Congress doesn't act it is dead and how is that Congressional action different in a suspension vs a strike-down of the whole thing.
Mar '11
Re: Understanding Severability
Wait a minute does, that mean if congress put a severability clause in a spending bill it would now be constitutional for the president to line item veto that bill?
So that begs another question, if congress put a severability clause in a spending bill would it also require another(or same) law that gave the president line item veto power. If not the readers point of how does the court have more power to basically line item veto specific clauses in a law and the president does not? I guess I missed that point in reading the articles in the constitution.
Does it have anything to due with congress by two thirds majority being able to over-rule a presidential veto but they are not able to overrule a supreme court veto by the same margin?
Mar '12
Re: Understanding Severability
Is my memory correct that in Marbury the Court only struck down the part of the Judiciary Act of 1789 that gave them original jurisdiction in cases like that of Mr. Marbury? From that perspective, it was perfectly reasonable to rule that provision unconstitutional, but leave the rest intact--as it set up much of the U.S. Court system.But in Obamacare, it might be that the bill can't function absent the mandate. It might also be that the Court has to make such a judgment.Was the "doc fix" in the final bill? Suppose it was, and suppose the Court struck that down, but found nothing else unconstitutional in the bill. Would it make sense to strike down the whole thing? I submit the logic of Marbury would apply in such a case.
May '10
Re: Understanding Severability
It is conceivably different in that it is possible that Roberts might not vote to kill the whole law because he always looks for the narrowest grounds in controversial 5-4 cases. He worries about the "activist court" image, which is exactly why Obama is now lobbying him, Alito, and Kennedy out loud. The mandate alone is a big enough deal to kill the whole law, and Roberts may not like having that hung around his Court's neck (just as SCOTUS caved in 1938 after the fallout from killing half of the New Deal).
A way to kill the law that effectively kills it without completely killing it- and putting pressure on Congress to act- could be enough of an "out" to get his vote if he is skittish.
Apr '11
Re: Understanding Severability
If Obamacare had had a severability clause, would that change your answer? It seems awfully broad. If, for instance, you have a defense budget which makes an unconstitutional $1m payment to some church as part of a program to support Pentagon chaplains, should all the rest of the budget be trashed?
Jan '12
Re: Understanding Severability
James, the Supreme Court has declared that the President cannot strike that component from the bill using a line item veto because it is unconstitutional. The only way to say that the Justices can do something that has the same result as the President doing it (making a law that has not been passed or signed) is to say that everything the Supreme Court does is constitutional simply because they did it. That is like arguing against evolution by claiming God put the dinosaur fossils in the ground. Since God can do anything, all argument is over.
Mar '12
Re: Understanding Severability
My memory is correct. In Marbury, the Court struck down one provision of the Judiciary Act of 1789. The rest of the act remained:http://www.lawnix.com/cases/marbury-madison.html
Jan '12
Re: Understanding Severability
So you are saying it goes back a few years ;-)
Ok, I don't see how the Supreme's logic in calling the line item veto unconstitutional holds water in light of severability.
Essentially, a law is only a law if passed by both houses of Congress and signed by the President, unless the Supreme Court says different. That doesn't work. Clearly with the concept of judicial review, the Court needs the authority to strike a law, but to strike just a small portion of a law is too similar to the unconstitutional line item veto power. The result is the same, the only difference is who did it.
Edited on April 3, 2012 at 4:42pmMar '12
Re: Understanding Severability
Classically speaking, by which I mean outside the world of legal positivism, the idea of judicial review looked rather different. If one looks back at the common law antecedents to what we call judicial review, one finds that the Court's job was to interpret the law before them in light of the higher law/ constitution. Presuming that Congress clearly would not want to do anything unconstitutional, they rendered void the part of the bill that "seemed" to suggest something that the Constitution prohibited.
May '10
Re: Understanding Severability
The question wasn't whether it is possible to invalidate part of a law and let the remainder stand- of course it is.
The issue here is more problematic than that- this specific law of 2700 pages is too wildly complex, and with specifically declared-by-Congress non-severability of the three core planks (mandate, community rating, must-issue).
Scalia and Kennedy were essentially suggesting that they probably need to take Congress at its word as written in the law because there is no way for the Court to dig through 2700 pages and map out which sub-element is or is not dependent on one of those three core planks. That's why I suggested that they do their basic job of killing the unconstitutional piece and then dump the rest of the job off.