Saturday, February 05, 2011

A Wake-Up Call on Severability Doctrine

Guest Blogger

Kevin Walsh

One of the most surprising aspects of Judge Vinson's decision holding the individual mandate unconstitutional was his further holding that the entire Patient Protection and Affordable Care Act was unenforceable. Judge Vinson determined that the mandate could not be severed from the constitutional remainder of the Act, thus causing the mandate's invalidity to metastasize throughout the Act . If sustained on appeal, this ruling would wipe out many provisions of the Act, including those already in effect, that have nothing to do with health insurance. (Michael Dorf discusses some of these here.)

Some have charged that Judge Vinson's decision was driven by partisan or ideological considerations (see, for example, the posts linked to here>). On this view, his inseverability-based in toto invalidation is but one aspect of an antipathy to the Act manifested throughout his opinion. There may be something to this criticism, but a too-ready, too-knowing recourse to an ideological or attitudinal explanation can obscure other important issues, such as the way in which flawed doctrine abets bad judicial decisionmaking.

Because severability doctrine does not receive much attention, many have not previously noticed that it is broken. Yet it is hard to ignore now. Perhaps one virtue of Judge Vinson's decision, then, will be to cast on a light on the sorry state of modern severability doctrine (about which I have previously written here).

Judge Vinson’s application of severability doctrine was mistaken in some of its particulars and probably wrong in its ultimate conclusion. The difficulty with drawing a stronger bottom-line conclusion is that the doctrine calls for backward-looking counterfactual speculation about whether Congress would have enacted the remaining provisions of the PPACA without the unconstitutional individual mandate. If this question is viewed wholesale, as Judge Vinson viewed it (i.e., would Congress have enacted everything else in the Act absent the individual mandate?), then the conclusion of inseverability is reasonable, though by no means beyond question. After all, the PPACA probably would not have existed but for the individual mandate. If this question is viewed on a provision-by-provision basis (i.e., would Congress have enacted Provision X, or Provision Y, or Provision Z absent the individual mandate?), then the conclusion of complete inseverability is on much weaker footing. The real problem with the doctrine, though, is that it calls for a series of imponderable “what ifs” about which reasonable people can disagree. That level of indeterminacy is unacceptable given that resolution of those imponderables can have massive consequences--as vividly seen here.

Judge Vinson's decision reintroduces a potent pairing previously seen in the 1930s (and not seen since then): a constitutional holding that Congress has exceeded its power under the Commerce Clause, joined with an inseverability holding that expands invalidity beyond unconstitutionality. The Supreme Court's use of severability doctrine to invalidate New Deal legislation triggered Robert L. Stern’s seminal scholarly analysis of severability, which appeared in 1937. After a thorough canvass of the development of modern severability doctrine from its first appearance in 1854 through when he wrote in 1937, Stern failed to find an organizing principle. He concluded, instead, that “the Court avails itself of one [severability] formula or another in order to justify results which seem to it to be desirable for other reasons.”

This criticism, and others leveled by Stern and later analysts, has never been adequately answered. Instead, the pressure on severability doctrine in federal law abated as the Court showed greater receptivity to New Deal legislation as a matter of substantive constitutional law. But while Judge Vinson's opinion reveals that history can repeat itself, there is good reason to believe that the current Supreme Court will be much more cautious in approaching the question of inseverability.

Although the Court has maintained a similar verbal formula for severability over time, its application of that doctrine has been much more restrained than in the decisions that prompted Stern to write. For different reasons, the Court's pragmatists, minimalists, and textualists have good reason to move severability doctrine away from the sort of backward-looking counterfactual speculation that yielded Judge Vinson's holding of inseverability (i.e., the determination that the individual mandate was inseverable from the remainder of the Act because Congress would not have enacted the Act without the mandate). While a detailed doctrinal analysis to support this assertion would be more appropriate for another venue, a careful review of the Court's severability reasoning in United States v. Booker and Free Enterprise Fund v. Public Company Accounting Oversight Board suggests directions in which the Court may be moving the doctrine. Justice Breyer’s pragmatic approach to severability in Booker is more forward-looking and consequentialist than the standard approach. Chief Justice Robert’s approach to severability in Free Enterprise Fund emphasizes the need for clear evidence that Congress intended inseverability; given the typical absence of such evidence, the result of this approach is minimalist with respect to the scope of invalidation (though the pragmatic approach is more likely to be minimalist with respect to practical consequences). Finally, textualist Justices eschew, in other contexts, the sort of exercises in imaginative reconstruction that standard formulations of severability doctrine on their face require. Perhaps they might begin to do so in this context as well. For all these reasons, it is extremely unlikely that the Supreme Court would conclude both that the individual mandate is unconstitutional and also that the remainder of the Act is inseverable.

While most attention, rightly, has been paid to the the constitutional issues, the district court’s ruling in Florida v. HHS demonstrates the importance of attending to severability doctrine as well. Paying attention now should yield dividends in the not-too-distant future, as the lessons of the past can inform the shape this doctrine takes going forward.

Kevin C. Walsh is an Assistant Professor at the University of Richmond School of Law. You can reach him by e-mail at kwalsh at

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