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Severance & Severability, Part III

In Part I of this series, I wrote that “while the left’s handwringing over the future of Wickard v. Filburn could be dismissed as hysteria or histrionics, its concern about the outcome of the severability issue [in Florida v. HHS] is firmly grounded in reality.”   I owe readers a few words supporting that conclusion.

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            In Champlin Refining Co. v. Corporation Comm’n of Oklahoma, 286 U.S. 210 (1932), the Court said,

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.

The phrase “would not” could refer only to the legislature’s “will” in the sense of the desires of legislators whose concurrence was essential to adopting a measure in a given form.  Under that interpretation, the Champlin formulation likely never will be applied based on evidence of historical facts.  For one thing, courts are understandably squeamish about admitting evidence of the actual goings-on at legislative swap meets.

Moreover, direct evidence of a legislator’s “will” regarding bundling or unbundling legislative provisions is unobtainable.  At best, there may be indirect evidence in the form of statements made by a legislator on or off the floor.  The probative value of a legislator’s pre-enactment statements as evidence of the legislator’s actual “will” is debatable.  Some of those statements may have been intended to influence the voting behavior of the legislator’s colleagues by intentionally overstating the speaker’s unwillingness to consider alternatives to a bill’s existing language.  Other pre-enactment statements may have been crafted to influence, satisfy, mollify, or at least deflect criticism from the legislator’s constituents, and ― without meaning to shock anyone ― spinning can involve varying degrees of sincerity.

Still, the Champlin formulation certainly does not rule out deciding the threshold question on which severability hinges by deciding what the legislature “would have” done based on evidence of historical fact.  And, unfortunately for the Government, Florida v. HHS may be a rare instance in which the Court can decide the threshold severability issue based on historical fact without throwing open the doors to future disputes about the credibility of statements by this or that individual legislator.  In the case of the Affordable Care Act, the House of Representatives left a smoking gun behind:  the Slaughter Rule.

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Before the House of Representatives took up the Senate’s version of the Patient Protection and Affordable Care Act, it adopted H.Res. 1203, 111th Cong., 2d Sess. (Mar. 21, 2010).  That resolution prohibited offering any amendment to the Senate version of PPACA, as it had been approved on December 24, 2009, by what at the time a filibuster-proof Senate.  The Slaughter Rule, as the resolution is known, became effective immediately upon its adoption because the Constitution explicitly provides that nothing further is required to make such a resolution effective.

The effect of the Slaughter Rule was to treat H.R. 3590, as amended by S. Amendment No. 2786 (December 24, 2009), the bill reflecting the Senate version of PPACA, as a package deal.  By adopting the resolution, the House as a body limited itself to voting on the Senate version of on an all-or-nothing basis.  Without a resolution overruling H.Res. 1203, the House effectively disabled itself from adopting any provision of the PPACA without adopting all the provisions of the PPACA, including Section 1501, where the individual mandate appears.  On these unique facts, the Court could apply the Champlin formulation by finding that, as a matter of historical fact, Congress would not have adopted the Affordable Care Act without the individual mandate by concluding that, as the result of H.Res. 1203, Congress quite literally could not have done so.

That application of Champlin may sound far-fetched, particularly since the House leadership and other proponents of the Act probably regarded the Slaughter Rule as nothing more than a parliamentary necessity following the election of Sen. Scott Brown.  The adoption of the Slaughter Rule would not compel a finder of fact to conclude that while it was being adopted, more than half the members of the House were thinking to themselves, “I will not vote to adopt any provision in the Senate’s version of this bill without adopting all of the other provisions in the Senate’s version of this bill.”

Nonetheless, the Slaughter Rule arguably has significance even if it is not evidence of the House’s intentions regarding whether the Senate version of the PPACA should be voted on only as a package.  The Court could conclude that the Slaughter Rule should be treated as a deed rather than an assertion.   To put the point another way, the Court could conclude that the significance of the Slaughter Rule as a statement stems solely from the fact that it was made, like the words spoken while christening a ship.  On that view, the effect of H.Res. 1203 could not be overcome by a showing that the House “did not really mean what it said.”

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