By Mike Dorf
Given my longstanding interest in severability (insert law nerd joke here), I was thrilled to see the attention that Judge Vinson's ruling last week brought to the issue. The timing was especially useful to me, as we were discussing severability in my Federal Courts class last week. Here I want to turn from the specifics of the severability or non-severability of the health care law (discussed on the blog last week here and here, as well as in a nice piece by Kevin Walsh on Balkanization), to address a very basic, but under-analyzed, aspect of severability: What exactly is the "law" that a court must consider severing? I'll explore that question through a couple of hypothetical examples.
Congress and state legislatures sometimes legislate wholly new legal obligations. Consider an example. Under the common law in the vast majority of U.S. jurisdictions, there is no general duty to rescue a stranger. But there a few exceptions. (Fans of the show Seinfeld will recall that one local law featured in the final episode.) Suppose that the law of State X has no duty to rescue but the legislature decides to impose one. The State X legislature passes the following "Good Samaritan Statute" (XGSS), loosely based on the Vermont law: Any competent adult who fails to take reasonable steps to rescue any person he or she knows to be in danger of death or serious bodily injury, when such steps would not endanger the rescuer, shall be guilty of a crime punishable by a fine of up to $100.
Now imagine a libertarian objection to XGSS, perhaps based in state constitutional law. Suppose that D is charged with violating XGSS in connection with V's death by drowning and successfully argues to the State X Supreme Court that XGSS violates the X Constitution. There having been no prior Good Samaritan law on the books, and there being no portion of XGSS that is salvagable if forcing people to aid strangers invalidly constrains their liberty, the court would simply strike the law and leave the rest of State X's laws as they were before the enactment of XGSS.
But now let's imagine a more complicated example. Suppose that instead of State X, Congress passes its own version, the "Federal Good Samaritan Statute" (FGSS). It provides: Any competent adult who fails to take reasonable steps to rescue any person he or she knows to be both engaged in interstate commerce and in danger of death or serious bodily injury, when such steps would not endanger the rescuer, shall be liable for a penalty of up to $100, payable either directly to the U.S. Treasury or via an increase in income tax liability.
Presumably, the FGSS would fail Judge Vinson's "activity" test because the persons subject to the law are not themselves engaged in interstate commerce. Indeed, if the individual mandate in the health care law is invalid on that ground, the FGSS is even more clearly so: The decision not to purchase health insurance can be fairly characterized as a part of a broader pattern of activity involving the funding or non-funding of one's health care, whereas the FGSS targets discrete instances of inactivity. In any event, I'm introducing this example for the severability implications, not the substantive ones.
Like the XGSS, if the FGSS were passed as a stand-alone statute, then its invalidation would be clean and simple. But we can imagine that the FGSS might be enacted as part of a larger package of measures. If so, then under the test applied by Judge Vinson (and arguably required by the language of the Supreme Court's cases), it's possible that the whole package could be invalidated, even if the other measures apparently have nothing to do with the FGSS. That's because we could imagine that Congress might have intended the whole package to stand or fall together or that it's just too difficult for a judge to figure out what's really intertwined with what. As I noted in my posts last week, I'm skeptical of both of those moves, but let's grant them for now. We then face the possibility of an even broader form of non-severability.
Typically, when Congress creates legal duties, it does so not by creating whole new Codes but by amending the existing U.S. Code. Let's suppose it did so with the FGSS, by including it as an amendment to an existing provision of the Internal Revenue Code, Title 26. So, what exactly is the "law" that a court finds unconstitutional when invalidating the FGSS? One answer might be that it's the package of provisions that was enacted at the same time as the FGSS, including the FGSS. But another and equally sensible answer might be that it's the provision of Title 26 that FGSS is now part of. Certainly for some provisions of law, that is the right answer: The amendment to an old provision of the law creates a new provision of the law. And then if there's a constitutional flaw in the new law (i.e., the product of the old law plus the amendment), then the severability analysis will focus on whether the offending provision is severable from other provisions, including some enacted at different times. The "law" that is either severable or not severable is the end product of the amendment process, not (or in addition to) the particular package of measures that was enacted by Congress along with the offending provision.
We could say that any time Congress enacts any change to an existing legal provision, it is simultaneously at least tacitly re-enacting that legal provision, as changed. Certainly so far as subsequent cases are concerned, people will be judged under the amended provision, including both old and new bits, understood as functioning together.
But once one accepts that view, it becomes apparent that courts must always find severability somewhere, or else a finding of unconstitutionality in any federal statutory provision must result in the invalidation of the entire U.S. Code. That is plainly absurd, of course, but the possibility shows that courts never really face a choice of whether to sever, but only of how much to sever. In other words, Judge Vinson was mistaken to think that he could simply avoid having to make any judgments about where to sever by invalidating the whole of the Patient Protection and Affordable Care Act. In doing that rather than also invalidating other provisions of federal law--involving, e.g., provisions of Medicare and Medicaid that Congress may be thought to have tinkered with when it passed the PPACA--Judge Vinson was making a judgment to sever part but not all of the "law."
Finally, although I have focused here on Judge Vinson, that is mostly because his recent decision is in the news. My main concern is the practice of severability more broadly.