Tuesday, February 08, 2011

Why Not Strike Down the Whole U.S. Code as Non-Severable?

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.

17 comments:

andy said...
This comment has been removed by the author.
andy said...

Sounds like you are touching on some fascinating issues, but I'm not totally sure what you mean when you suggest that an amendment may congeal with an existing provision.

To consider a concrete example, in the health care bill, Congress amended Section 6041 of the Internal Revenue Code by expanding the infamous 1099 reporting requirements (the amendments were made by adding some language to Section 6041(a) and by adding a new Section 6041(h)). Assume, completely insanely, that the 1099 requirement alone is unconstitutional. Would your point be that the new amendment could potentially be viewed as integral to Section 6041 itself, such that it may be appropriate to consider whether the new subsection is severable from Section 6041 (and perhaps related statutes), rather than severable from other provisions in the Public Law in which the new subsection was enacted? That is, would a court potentially face the decision of whether to strike down 6041 entirely as unconstitutional (and perhaps related pre-existing statutes), once establishing that the amendments to that section are unconstitutional?

I find myself a bit befuddled by this. To me, it seems like this is a simple case. Congress didn't really "re-enact" Section 6041, but just added some language to it. I'd think it is thus fairly easy to conclude that the new parts are severable from the pre-existing provisions. And I'm worried that a new subsection can bring down an entire regime, which, prior to the amendment, was considered fully constitutional. I see the logic of severability analysis regarding a single Public Law, but I'm having a much harder time accepting the possibility that validly enacted statutes can, after the fact, become unconstitutional.

But I'm largely ignorant of severability issues: Are there really cases where a court performs severability analysis by looking at pre-existing law? If that's the status quo, you may have led to me to an article topic. . .

Kevin C. Walsh said...

I don't see why Judge Vinson had to say anything about severability at all. The matter in controversy was whether the individual mandate may be enforced against the plaintiffs. Having answered that question in the negative, he fully resolved the controversy. One could treat such a limited holding as implicitly severing, but one could also, and more simply, treat the limited holding as not affecting the law at all--only its enforceability in certain circumstances through doctrines of precedent and preclusion.

As for Andy's question, I share the question about the amendment congealing with the existing provision. I might go one step further and question the logic of severability analysis even as applied to a single public law--though this challenge is not so much to your analysis specifically as it is to inseverability doctrine more generally .

Michael C. Dorf said...

I haven't reviewed all of the relevant cases to see whether any of them happens to involve severability of a provision from other parts of a Code or Code section that was enacted at a different time, but I would note that the severability analysis in INS v. Chadha--http://www.law.cornell.edu/supct/html/historics/USSC_CR_0462_0919_ZO.html--(one of the leading severability cases) discusses the severability of subsection 244c2 from the rest of section 244 of the amended Immigration and Nationality Act, without discussing severability from the Public Law itself. That's not a perfect example for my point, because all of Section 244 was enacted at once, but it's easy to imagine a case in which that's not so.

Hashim said...

I think the "same-public-law" distinction a fundamental one for the following reason: when refusing to sever Provision Y w/in a single public law because of the unconstitutionality of Provision X, the court is merely holding that Congress wouldn't have passed Provision Y w/o Provision X, whereas, when refusing to "sever" Provision Z from a previously enacted public law, the court would essentially be holding that Congress would have *repealed* Provision Z if it couldn't enact Provision X.

It is one thing to refuse to give as much effect as constitutionally possible to a law actually passed by Congress that contains unconstitutional provisions; it is quite another to pretend that Congress repealed a validly enacted law when it never actually did so.

Btw, in response to Kevin's query, the States in Florida did challenge, among other things, the Medicaid provisions of the Act, so it's not correct to say that the mandate was the only injury-causing provision at issue. Some amt of severability analysis was definitely necessary.

Michael C. Dorf said...

We discussed this issue in my Fed Courts class today and I gave the students the extra-credit task of looking for cases in which the Supreme Court or another court applies severability analysis to parts of a statute enacted at different times. One student--Alicia Amdur--just emailed me, noting that in United States v. Booker, the majority (on the remedial point) finds that the unconstitutionality of the earlier-enacted portion of the Sentencing Guidelines requires the invalidation and severing of a later-enacted provision governing appellate review. Crucially, the Court's analysis considers the functioning of the AMENDED Act as a whole and imputes intent to Congress with respect to the amended whole. Thus, the Court in Booker makes the resultant Act its focus, not the particular Public Laws that were passed one at a time.

To be clear, I'm not saying this is the right approach. I'm just saying that one needs reasons to choose the Public Law focus over it. Perhaps Hashim's reasons suffice in some settings. But existing case law does not rule out the potentially more far-reaching alternative discussed in the post.

egarber said...

If one believes congressional intent is controlling, could a judge ever find that a previous Congress intended its entire framework to be dismantled in the event a future Congress affects it?

andy said...

The situation discovered by your enterprising student seems different from the hypothetical in the blog post. That is, as I understand the summary of Booker, Congress enacted an unconstitutional statute in Year 1, and in Year 2, enacted a statute that was fundamentally related to that statute. In these circumstances, it seems fair to strike down a later statute.

To consider another example, if Congress passed an income tax in Year 1 and reporting requirements in Year 2, and the income tax was later declared unconstitutional, I could see why we'd toss the reporting requirements as well -- the later Congress premised its imposition of reporting requirements on the existence of an income tax.

But I'm still looking for an instance of the reverse scenario -- that is, a scenario where a perfectly constitutional statute becomes destroyed by an unconstitutional amendment a few years later. Striking down the earlier statute, which stood on its own as a constitutional act, seems substantially different from the Booker situation. Please do let us know what else your students turn up.

Kevin C. Walsh said...

Thanks, Hashim, for correcting my misstatement about the scope of the litigation. In focusing on the need to go to the next step of severability after a finding of unconstitutionality, I did not mention any of the other claims that failed as a matter of law.

The Supreme Court came up against the issue of the relationship, for severability purposes, between a new law and previously enacted law amended by the new law in Alaska Airlines, Inc. v. Brock. Although the Court’s discussion in that case does not squarely answer the issue identified in the original post, it seemed an interesting data point worth sharing. Alaska Airlines was a post-Chadha case that also dealt with the severability of a legislative veto. The parties did not agree whether there was an applicable severability clause. The Airline Deregulation Act of 1978, which contained no severability clause, amended the Federal Aviation Act of 1958, which did contain a severability clause. The Court declined to decide whether the severability clause applied, because its invocation would only create a presumption of severability, and the court found clear congressional intent of severability even in the absence of a presumption.

Although not resolving the issue, a footnote expressed doubt about the applicability of the earlier severability clause to the particular section of the Airline Deregulation Act of 1978 at issue in the case. The footnote explained that the section whose severability was at issue "[did] not amend provisions of the Aviation Act or any other preexisting statute, but instead establishes a new program." One implication may be that, if the later statute did amend the earlier one, the severability clause would carry forward its applicability to the whole new amended version. Not much, I suppose, but something.

JP Andreas, Pres. A.C.L.P. said...

Very interesting discussion. Of course, I take it as the "theory" you ostensibly intend, as the federal courts have never adopted the novel argument that modification of ANY portion of the U.S. code (i.e. 'title') must always implicate the whole. More to the point, the reason Judge Vinson struck down Obamacare in its entirety was due to:

1) His finding that an individual mandate punishing the failure to take take the commercial act of buying insurance(as opposed to the "activity" of actually taking some commercial act), ran counter to the rationale of our countries founding act of the American Revolution, to wit:

"It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place." (P. 42 of ruling and Order, download in pdf form here http://johnrlott.blogspot.com/2011/01/copy-of-florida-judges-decision.html).
Indeed, if this is upheld it is hard to imagine the federal government not possessing the authority to make us all eat our broccoli, stop smoking, or buy only a certain kind of car, (say, electric). AND
2) The Justice Department's own insistence before the court that failing to uphold the individual mandate necessarily required the legislation be struck in its entirety and his finding that Congress' intention was to expressly NOT include a severability clause in the legislation.

But certainly an interesting and thought provoking discussion.

Jp Andreas www.americanlawandpolicy.blogspot.org

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As if XGSS FGS was adopted as an autonomous status and its invalidation would be straightforward. But it is conceivable that FGS can be adopted as part of a wider package of measures. If so, then, according to the criteria used by Judge Vinson (and probably required by the language in the case of the Supreme Court), it is possible that the entire package may be weakened, even if other measures have apparently nothing to do with the FGS. This is because we could imagine that Congress could have intended the entire package to stand or fall together, or it is too difficult for a judge to determine what is really intertwined with what. As I noted in my post last week, I am skeptical of these two movements, but we will give them for now. We then face the possibility of an even broader form of non-independence.Eden GoldBuy Eden GoldCheap Eden GoldEden EternalEden Eternal GoldEden Eternal Review

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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.
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