Beyond Severability

Beyond Severability Lisa Marshall Manheim  ABSTRACT: Severability is a wrecking ball. Even the most cautious use of this doctrine demolishes statutes in contravention of legislative intent and without adequate justification. It does so through the imposition of an artificially restrictive framework: one that requires that courts respond to a statute’s constitutional flaw by disregarding that statute either in whole or in part. In the last few years alone, this framework has flattened the Voting Rights Act, threatened the Bankruptcy Code, and nearly toppled the Affordable Care Act. Yet courts apply severability reflexively, never demanding justification for its destructive treatment. Scholars, meanwhile, assiduously debate the particulars of the severability rules without questioning whether those rules should apply in the first place. This Article, insisting that severability justify its prominent position among the tools of statutory construction, concludes that it should be abolished. Courts should replace it with a fundamentally broader inquiry into, first, the constructions of a constitutionally defective statute that would diffuse its constitutional defects, and, second, which among these options the legislature would prefer.  Assistant Professor, University of Washington School of Law. I am indebted to those who have offered insights in furtherance of this project, including Kate Andrias, Eric Berger, Ryan Calo, Eric Fish, Brianne Gorod, Sanne Knudsen, Anita Krug, Shannon Weeks McCormack, Elizabeth Porter, Zahr Said, Kathryn Watts, and David Ziff, as well as the participants at the Seattle Junior Faculty Forum. Grateful acknowledgement is due to Dane Westermeyer, Thomas Miller, and the research librarians at the Gallagher Law Library for outstanding research assistance. 1834 IOWA LAW REVIEW [Vol. 101:1833 I. INTRODUCTION ........................................................................... 1835 II. SEVERABILITY AS A BLITHELY ACCEPTED TOOL ........................... 1839 A. T HE U NQUESTIONING A CCEPTANCE OF THE S EVERABILITY F RAMEWORK BY C OURTS AND S CHOLARS ................................ 1841 B. T HE A PPEAL TO J UDICIAL R ESTRAINT THAT C OURTS AND S CHOLARS O FFER IN S UPPORT ............................................... 1845 III. SEVERABILITY AS A DESTRUCTIVE FORCE ..................................... 1850 A. L EGISLATIVE I NTENT : A N U NACKNOWLEDGED C ASUALTY OF S EVERABILITY ’ S R ESTRICTIVE F RAMEWORK ............................. 1851 1. Construing a statute in a way that expands its reach ............................................................................. 1851 2. Disregarding (or otherwise altering) a portion of the statute that is not considered to be the most immediate source of the unconstitutionality ............................... 1853 3. Treating some portion of the statute as having a nonstandard meaning ................................................. 1856 4. Construing or applying the statute in a way that gives the court too much “editorial freedom” ................... 1857 5. Engaging in “application severability” ...................... 1860 B. S TATUTORY D AMAGE : H OW S EVERABILITY ’ S D ISREGARD OF L EGISLATIVE I NTENT W REAKS H AVOC ON THE L AW ................ 1866 IV. SEVERABILITY AS AN UNJUSTIFIED DOCTRINE ............................. 1872 A. T HE L ACK OF J USTIFICATION FOR S EVERABILITY ’ S D ESTRUCTIVE E FFECTS ................................................................................ 1872 B. A P ROPOSAL FOR A N EW F RAMEWORK .................................... 1885 V. CONCLUSION .............................................................................. 1891 2016] BEYOND SEVERABILITY 1835 I. INTRODUCTION In one of the most consequential cases heard by the Roberts Court— National Federation of Independent Business v. Sebelius 1 —four justices in dissent attacked not only the specific outcome reached by the majority, but the very approach those justices took to their judicial role. Accusing the majority of “vast judicial overreaching,” 2 the four argued that the Court had more than simply erred; it had engaged in “judicial usurpation.” 3 What, according to the dissent, was the nature of this judicial crime? It was construing the Affordable Care Act in a manner that permitted most of the statute to continue in operation. More specifically, it was the majority’s application of the so-called “severability” doctrine—a framework for analysis requiring a court to disregard an unconstitutional statute in whole or in part—that triggered the impassioned attack. What, then, was the dissent’s preferred, more judicially restrained alternative? It was to strike down the entire Act. According to the dissent, complete invalidation of the Affordable Care Act was the only response consistent with the values that should guide a court engaging with a congressionally enacted statute: “caution,” “minimalism,” and “judicial modesty.” 4 The tension is startling. On the one hand are calls for judicial restraint and modesty; on the other, a willingness to reach conclusions about statutes that destroy their operation. Despite the inherent friction in the dissent’s position, attempts by the majority in National Federation to defend its opinion against these attacks fell flat—or, at least, they lacked the rhetorical power churning through the dissent. This was not due to oversight or neglect by the five in the majority. It turns out it is surprisingly difficult to explain why taking a more flexible approach to a constitutionally defective statute might not be, in the words of the dissent, “a more extreme exercise of the judicial power than striking the whole statute.” 5 It is similarly difficult to justify why a court, when engaging in a more accommodating form of severability analysis, is not impermissibly “impos[ing] on the Nation, by the Court’s decree, its own new statutory regime, consisting of policies, risks, and duties that Congress did not enact.” 6 To the contrary, as soon as one accepts that the “severability” framework controls, it proves extraordinarily difficult to resist accusations like those lodged by the National Federation dissent. Understanding the fundamental error of the criticism—and of the National Federation dissent— therefore requires taking a step back: asking whether “severability” should apply at all. 1. Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012). 2. Id. at 2676 (joint opinion of Scalia, Kennedy, Thomas, and Alito, JJ., dissenting). 3. Id. at 2668. 4. Id. at 2676. 5. Id. at 2668. 6. Id. 1836 IOWA LAW REVIEW [Vol. 101:1833 This Article embraces this overlooked question. And it reaches what may seem like a radical conclusion. Notwithstanding the ranks of courts and scholars who reflexively accept severability as a framework for construing constitutionally flawed statutes, 7 this Article concludes, quite to the contrary, that severability should lose its prominent place in the doctrine. It is a deeply flawed framework for analysis that, in the last three years alone, has imperiled the Voting Rights Act, 8 the Bankruptcy Code, 9 and the Affordable Care Act, 10 to name but a few examples. Even when taken on its own terms, the severability framework cannot justify what it does to statutes. This Article is the first to reach this result. While elaborate and impassioned scholarly debates continue to unfold over severability’s specifics—how exactly the doctrine should be articulated and applied 11 —near silence reigns with respect to whether severability’s fundamental framework is appropriate for the problems that it purports to resolve. Instead, courts and scholars take most of severability for granted. They accept, nearly without fail, that courts should turn to “severability” when grappling with constitutionally defective statutes, 12 that severability’s analytical framework requires courts to disregard statutes either in whole or in part, 13 and that legislative intent must play a central role in the courts’ conclusions. 14 Courts and scholars also tend to agree on what motivates severability’s framework: the often stated but rarely defined principle of judicial restraint. 15 7. See, e.g. , Kevin C. Walsh, Partial Unconstitutionality , 85 N.Y.U. L. REV. 738, 740 (2010) (“Current law and scholarship [maintain] that severability doctrine is the exclusive way to deal with partial unconstitutionality.”); see generally infra Part II.A (exploring the reflexive acceptance that severability enjoys from both scholars and the courts). 8. See Shelby Cty. v. Holder, 133 S. Ct. 2612 (2013); infra Part II.B. 9. See Exec. Benefits Ins. Agency v. Arkison, 134 S. Ct. 2165 (2014); infra Part II.B. 10. See Nat’l Fed’n of Indep. Bus. , 132 S. Ct. at 2566; infra Part II.B. 11. See, e.g. , Mark L. Movsesian, Severability in Statutes and Contracts , 30 GA. L. REV. 41, 41–42 (1995) (compiling list of scholarly works that, collectively, have criticized severability “on almost every conceivable basis”); see also Tom Campbell, Severability of Statutes , 62 HASTINGS L.J. 1495, 1497 n.3 (2011) (same). 12. See infra notes 44–59 and accompanying text. 13. See infra notes 35–43 and accompanying text. 14. This third area of consensus may strike some as surprising, given that it addresses the role that legislative intent (an oft-maligned concept in the world statutory interpretation and construction) plays in the analysis. See, e.g. , Conroy v. Aniskoff, 507 U.S. 511, 528 (1993) (Scalia, J., concurring) (“[The Court] should not pretend to care about legislative intent (as opposed to the meaning of the law) . . . .”); see also id. at 519 (“We are governed by laws, not by the intentions of legislators.”). Yet legislative intent plays a central role in every articulation of the severability test, and the eight members of the current Supreme Court (as well as the most recently departed member of the Court, Justice Antonin Scalia) agree that severability...