Severance & Severability, Part II

In a post last week, I suggested that severability is the real focus of Jeff Rosen’s May 4th column in The New Republic.  Some background about the Court’s severability jurisprudence will help me to explain why.

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The severability issue in Florida v. HHS involves two related but distinct questions (reflected, however poorly, in the title of this and my previous post).  The first is whether the entire Act is invalid, which is the flip side of asking whether any remaining provisions of the Act are severable from the individual mandate (assuming it is held to be unconstitutional).   If so, then the second question is which of the Act’s remaining provisions are to be severed and upheld.  These questions may sound simple, but the body of precedent the Court could apply to answer them is notoriously hard to comprehend.

The Court arrived at its current formulation of a severability doctrine in Champlin Refining Co. v. Corporation Comm’n of Oklahoma, 286 U.S. 210 (1932).

Unless it is evident that the legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.

It is reasonably clear from Champlin that a court is not permitted to sever the balance of an enactment from an unconstitutional provision in either of two circumstances: (1) when it is evident that the legislature would not have enacted the balance of the enactment without the unconstitutional provision; or (2) when the balance of the enactment is less than fully operative as a law.  It is also reasonably clear from Champlin that in any other circumstances, a court is permitted but not required to exercise the power to sever the balance of the act from the unconstitutional provision; outside the circumstances where sseverability is absent,  Champlin says that “the invalid part may be dropped.”  In short, except in two situations were severability is ruled out, severance is a permissible exercise of judicial discretion when a court fashions a remedy.  So far, so good.

It is the application of Champlin that has proven so difficult.   The causes of the difficulties are not hard to imagine.  First, Champlin does not explain how a court should determine whether one of its limiting principles applies.  Precisely when is it “evident” that the legislature would not have enacted the balance of a statute without the unconstitutional provision?  And how does one form a reasonable judgment as to whether the balance of the enactment is fully operative as a law?  Second, even if the boundaries of a court’s power to sever were marked more clearly, Champlin leaves open the entire question of what factors should guide the exercise of judicial discretion in those circumstances where severance is permissible.

To appreciate one of the difficulties engendered by the Champlin formulation―the one I think is the key to understanding Rosen’s piece―consider Justice O’Connor’s summary of the Court’s severability jurisprudence circa 2006 in Ayotte v. Planned Parenthood of Northern New England, 546 U.S. 230, paying particular attention to the discussion of legislative intent:

Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem.  We prefer, for example . . . to sever its problematic portions while leaving the remainder intact . . .

Three interrelated principles inform our approach to remedies. First, we try not to nullify more of a legislature’s work than is necessary, for we know that “[a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people.”  . . . 

Second, mindful that our constitutional mandate and institutional competence are limited, we restrain ourselves from “rewrit[ing] state law to conform it to constitutional requirements” even as we strive to salvage it. . .

Third, the touchstone for any decision about remedy is legislative intent, for a court cannot “use its remedial powers to circumvent the intent of the legislature.” . . . After finding an application or portion of a statute unconstitutional, we must next ask: Would the legislature have preferred what is left of its statute to no statute at all? . . . All the while, we are wary of legislatures who would rely on our intervention . . .

The discussion of legislative intent reveals a paradox of sorts.  (I say “reveals,” not “creates,” because I think Justice O’Connor intended this portion of Ayotte to be a phenomenology, not a “restatement of the law of severability.”)    According to Ayotte, legislative intent is one of three principles that “inform [the Court’s] approach to remedies” when the Court follows its preference for severance over complete invalidation.  At the same time, “legislative intent” also is described as “the touchstone for any decision about remedies” because a court “cannot” use its remedial powers to “circumvent the intent of the legislature.”  If pre-Ayotte case law justifiably treated legislative intent as the “touchstone” for fashioning a remedy in any case, then perhaps the first two remedy-fashioning principles are nothing more than corollaries to the third, or perhaps they are superfluous altogether, or perhaps the Court has been wrong to rely on them.

The mystery deepens because in the very same paragraph stating that a court “cannot” use its remedial powers to “circumvent the intent of the legislature,” Justice O’Connor calls attention to a circumstance in which the Court is wary of an intent on the part of the legislature (specifically, the intention that the Court “intervene” to rescue a statute from its defects).  If wariness is the prelude to circumvention, then “legislative intent” does not seem adequate to fulfill the essential function of a touchstone, whether it is the one and only legitimate remedy-informing principle, merely one of three more or less equal principles, or primus inter pares.

The apparent paradox vanishes with the recognition that “legislative intent” has a highly specialized meaning in the context of the Court’s severability jurisprudence.  According to Ayotte’s account of prior severability decisions, “legislative intent” is ascertained by the Court’s answer to one question:  “Would the legislature have preferred what is left of its statute to no statute at all?”  Thus, as described in Ayotte, legislative intent is not a question of historical fact.  It is an expression used to describe the Court’s answer to a hypothetical question based on a premise that is contrary to fact.

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Jeff Rosen’s May 4th piece is far more comprehensible by taking into account this facet of the Court’s severability case law.  The peculiar definition of “legislative intent” in the context of the severability inquiry helps explain why a supporter of the Act might hope to do his side some good by penning a reminder to Chief Justice Roberts about consensus-building and the avoidance of 5-4 decisions.

To be more explicit, if “legislative intent” is decoupled from historical fact in the context of severability, consensus-building on the remedial issue becomes more than a theoretical possibility.   If “legislative intent” merely refers to the result of speculating about what Congress might have done in hypothetical circumstances, the remedial question in Florida v. HHS or any other case is inherently less likely than a disagreement over the proper construction of the Constitution to create any unbridgeable divide among the Justices.  After all, it is difficult to insist, at least on any reasoned basis, that there literally is only one permissible answer to a hypothetical question about what might have happened if circumstances in the past had been different from what they actually were.  Moreover, no answer to a hypothetical question about “legislative intent” in such a narrowly-defined sense is likely to strike a Justice as a constraint on his or her subsequent decision-making.  Thus, if “legislative intent” is delinked from historical fact, there is less reason to resist compromising one’s views for the sake of greater unity.

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I think what may have inspired Jeff Rosen to elevate consensus-building to “moment of truth” status for Chief Justice Roberts is the possibility that parts of the Act might be severed from the individual mandate and upheld.  More generally, the praise heaped on “judicial restraint” by the White House, the Chair of the Senate Judiciary Committee, and other improbable sources makes a bit more sense if the true source of their post-argument anxiety is the severability question, not the Commerce Clause issues.

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