At balkinization, Gerard N. Magliocca poses an intriguing question:

Suppose Congress knows that a certain provision (say about campaign finance) will be constitutionally suspect. They could bundle it with lots of unrelated matters and insert a non-severability clause providing that: “If any portion of this legislation is found unconstitutional by the Supreme Court, then every other portion becomes inoperative.” In that case, the SG would solemnly tell the Justices that striking down the contested provision would deprive orphans of milk, stop the construction of a dam in Utah, and so on. This doesn’t preclude the Court from acting. It just makes it harder.

Obviously, political obstacles would often block this clever stratagem. Legislators, Magliocca notes, might be reluctant to put their pet projects at risk. More important to my mind, legislators do not resent but positively crave judicial supremacy: their willingness to legislate at or beyond the Constitution’s outer limits is predicated on the expectation that the Court will surely excise offending provisions. (This is why campaign finance statutes such as McCain-Feingold don’t contain anti-severability provisions; they contain accelerated review provisions.) Still, the hypo helps to test basic intuitions about legislation and judicial review.

• Would it be constitutional to yoke unconstitutional provision (A) to widows-and-orphans provisions (B)-(Z)? Putting aside imaginable concerns over interferences with Article III powers and the like, do statutory provisions become non-severable on a mere congressional say-so, or does the term have a substantive (and judicially enforceable) meaning? The question bears on the confused analysis that the Court has applied to statutes that don’t contain a severability clause (such as the Patient Protection Act, which prompted Magliocca’s hypo). In one common formulation of the test, the Court will ding an entire statute if Congress “would not have enacted” the statute without the offending provision. That may make sense with respect to clean, tax-A-and-give-the-money-to-B statutes: the entire transaction falls with the tax. However, in dealing with 2,000-page omnibus statutes, the test is deeply ambiguous. Does “would not have enacted without” mean every interest group favor that was necessary to collect the requisite votes? In that sense, no provision in the PPACA, from the individual mandate (inserted to buy the insurance industry’s assent) to the tanning salon tax to assorted give-aways to the pharma lobby, is severable. Or does the test mean something like functional inter-operability—based on an independent assessment by the Court and, if need be, independent of the actual will of the Congress? (Heads up: coming posts by Tom Christina will discuss the severability issue in detail.)

•  Magliocca notes that the hypothetical non-severability provision might not immunize offending provisions against “as applied” challenges. Thus, putting aside “overbreadth” challenges, the hypothetical non-severability may not make much of a difference in First Amendment cases. In this event, America’s orphans will have the best of both worlds—access to violent video games, and free milk. However, “as applied” challenges aren’t permitted (at least not officially) in Commerce Clause cases; as the Supreme Court has often put it, plaintiffs may not “excise” their conduct from federal statutes that are constitutional over some range. Should that difference itself make a difference in how we think about the hypothetical provision? Or, should it make us (and the Court) re-think a Commerce Clause jurisprudence that, in prohibiting “as applied” challenges, compels plaintiffs to bring a “facial” challenge to the effect that the challenged provision is unconstitutional in any and all applications?

Food for thought.