This post explains why principles of judicial restraint and separation of powers dictate that, if the Supreme Court rejects the ObamaCare mandate, the judicially modest thing to do is to strike down the whole law.
Aaron Worthing has been analyzing the ObamaCare arguments over the past three days, and his entry on the severability issue is here. The severability issue is simple: if the Court finds unconstitutional the mandate that citizens buy health insurance, what happens to the rest of the law? Does the Court keep it, scrap it, or keep some parts and scrap others? And how should this decision be made?
It’s called “severability” because if the Court keeps part of the law, it thereby deems that that portion is “severable” from the rest of the law, which can then be preserved.
Rather than give you a summary and analysis of yesterday’s arguments, I am going to propose what I think the proper analysis should be when a court strikes down part of an unconstitutional law. My argument proceeds from textualist principles and from the separation of powers inherent in our governmental structure.
Although this post is not an analysis of yesterday’s arguments, I will sprinkle the post with quotes where appropriate — and I will use a particularly amusing quote from Justice Scalia as a springboard:
JUSTICE SCALIA: All right. The consequence of your proposition, would Congress have enacted it without this provision, okay, that’s the consequence. That would mean that if we struck down nothing in this legislation but the — what’s it called, the Cornhusker kickback, okay, we find that to violate the constitutional proscription of venality, okay? (Laughter.)
When we strike that down, it’s clear that Congress would not have passed it without that. It was the means of getting the last necessary vote in the Senate. And you are telling us that the whole statute would fall because the Cornhusker kickback is bad. That can’t be right.
I think it absolutely can be right — but my analysis would not depend on whether I think Congress subjectively would have passed the statute without a constitutionally flawed provision. My analysis would be: any statute without a severability provision that is struck down in part must be struck down in its entirety.
Here’s my reasoning: first, Congress knows how to put in a severability clause, and as Aaron has noted here on past occasions, these clauses generally appear in most legislation. And it very pointedly did not in the ObamaCare legislation.
And here is the problem: absent a severability provision, when you cut out part of a law, the part that remains is not the law that Congress voted for.
Lawmaking consists of all kinds of logrolling, deals, and compromises. The Constitution provides a way for a bill to be voted into law, and when a court cuts out part of a bill, you’re left with a piece of legislation that does not represent the same piece of legislation Congress voted for.
The original piece of legislation, like all legislation, represented a legislative compromise. The new, rewritten piece of legislation does not.
Let’s take a simple hypothetical to make the point clear. Congress finally decides to get serious about our debt and deficit. (I said it’s a hypothetical.) Republicans agree to hike taxes on the wealthy, in return for deep, immediate spending cuts in entitlements. Democrats agree to those deep cuts in return for the tax increase.
Let’s say the Supreme Court decides one half of that bargain is unconstitutional. Is it possible that the other part should be left to stand?
Assume the Court invalidated the spending cuts. If you’re a Republican, would you accept the tax hike staying as law?
Or assume the Court struck down the tax hike. If you’re a Democrat, is it fair to keep the spending cuts in place?
Now, not every portion of legislation is central to the ultimate bill. It’s a matter of degree. But the question is: who decides?
I submit to you, dear reader, that the decision which parts of the law are really so important that they are critical to the bill is not an appropriate decision for the courts. It’s a legislative decision and it’s one that Congress should be making. And that is why, absent a severability clause, striking down the whole law is actually the most “conservative” action for a court to take.
The funny thing is that, of all the Justices, guess who actually seemed to get this point yesterday? I believe the answer is: Justice Kennedy. Here’s a quote:
JUSTICE KENNEDY: When you say judicial restraint, you are echoing the earlier premise that it increases the judicial power if the judiciary strikes down other provisions of the Act. I suggest to you it might be quite the opposite. We would be exercising the judicial power if one Act was — one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended. By reason of this Court, we would have a new regime that Congress did not provide for, did not consider. That, it seems to me, can be argued at least to be a more extreme exercise of judicial power than to strike - than striking the whole. . . . I just don’t accept the premise.
I don’t say this often, but Justice Kennedy is dead on.
And that is why the example of the Cornhusker Kickback is relevant. Justice Scalia is wrong to say that it “can’t be right” that you would strike down a whole law just because one non-central piece of bribery is found unconstitutional. But that is not the court’s role to decide. Congress decided, as a body, that the Cornhusker Kickback was going to be part of the legislation. Absent a severability clause, it’s not a judicial function to determine what in a law is central.
That appears to be what the Court is going to do, if the mandate is struck down: decide whether it was central. This is because their precedents appear to require it. And apparently, the Justices will conclude that the mandate is the heart of the law and kick it all. To do otherwise would force them to read all 2700 pages of the law and go provision by provision:
JUSTICE SCALIA: Mr. Kneedler, what happened to the Eighth Amendment? You really want us to go through these 2,700 pages?
But this procedure would be not only cruel and unusual punishment, as Justice Scalia amusingly suggested. It is quite simply not the job of nine men and women in black robes. And that is the case whether the mandate is the “heart of the law” or not. Indeed, it’s not their job to decide what the heart of the law is.
Now, I know that people are going to respond (as Justice Breyer did yesterday) that there are pieces of legislation that are obviously not connected to ObamaCare, that many assume would have been passed anyway. Let’s run with that hypothetical, and assume that there is a law that seemingly everyone in Congress would agree to. We’ll call it the Obvious, Costless, and Long Overdue Solution to the Problem of Innocent Babies Being Murdered Act of 2010. And somehow, that wonderful piece of legislation is going to get torpedoed if we go with Patterico’s theory that you always kill the whole law if there is no severability provision. What do you say to that hypo, Patterico? Is Patterico saying he wants innocent babies murdered?!
My response is simple. If that’s a law everybody in Congress wants passed, they can pass that sucker on its own. But when the law’s supporters instead chose to attach it as a rider to an act of dubious constitutionality without a severance clause, they took the risk that the murdered babies would be tossed out with the bathwater of a totalitarian mandate. It’s really just that simple. In our democracy, it’s very hard to get a unanimous vote on anything — except, of course, rejecting Obama’s budget.
Chief Justice Roberts observed yesterday that what might seem like nonobjectionable legislation might have actually been less popular legislation that was included to win legislative approval:
CHIEF JUSTICE ROBERTS: The reality of the passage — I mean, this was a piece of legislation which, there was — had to be a concerted effort to gather enough votes so that it could be passed. And I suspect with a lot of these miscellaneous provisions that Justice Breyer was talking about, that was the price of the vote. Put in the Indian health care provision and I will vote for the other 2700 pages. Put in the Black Lung provision, and I’ll go along with it. That’s why all — many of these provisions, I think, were put in, not because they were unobjectionable. So presumably what Congress would have done is they wouldn’t have been able to put together, cobble together the votes to get it through.
So don’t give me a parade of horribles in which you posit hypotheticals where self-evidently wonderful legislation having nothing to do with health care got attached to unconstitutional legislation. The people who stuck those bills onto the ObamaCare monstrosity knew what they were doing. They could have done it a different way and they still can.
To do anything but strike down the whole law would be a violation of the separation of powers, and would be a power grab by the judiciary.
P.S. I should add that the lack of a severability clause, based on what I have read (I can’t immediately find the link) was not an accident or an oversight. Apparently Democrats removed it because they believed that if the law contained a severability clause, that would allow Republicans to argue that the Democrats were dubious about the constitutionality of the mandate.
Of course, as a textualist, I don’t care why they didn’t include the clause. I just care that it isn’t there. And since it isn’t there, as a judge, I would have to presume that if I cut out part of the law as unconstitutional, the remaining parts are not what Congress voted for, and I would strike it all down.