Whither Severability After Murphy v NCAA?

by Michael C. Dorf

Monday's SCOTUS ruling in Murphy v. NCAA is most notable for what it did not occasion: disagreement over the validity and scope of the Court's anti-commandeering doctrine. On Wednesday I offered various hypotheses to explain why the Court's more liberal justices have come to accept a doctrine that was ideologically divisive when adopted in the 1990s. Here I discuss the issue that did divide the justices in Murphy: severability.

Murphy features three quite different approaches to severability. Which one will predominate going forward is difficult to say, however, because severability is a lot like standing, the political question doctrine, and various other procedural devices that justices appear to manipulate based on their views of the merits. A justice who believes strongly in a law's unconstitutionality will tend to want to rule against severability -- thus maximally invalidating the law -- whereas a justice with a less unfavorable view of the law will tend to deploy a narrow conception of severability, thereby preserving more of the law.

To understand the disagreement over severability in Murphy, a brief refresher on the merits may help. The Court ruled on the merits that the Professional and Amateur Sports Protection Act (PASPA) unconstitutionally commandeered state legislatures by forbidding certain repeals of their laws forbidding sports betting. But that's not all that PASPA does.

Another provision forbids states from running their own sports betting operations such as sports lotteries. That provision does not commandeer the states, because it is a regulation of state conduct rather than a regulation of the laws the state may pass. Nonetheless, the majority struck down this provision as well on the ground that it was not severable from the unconstitutional commandeering provision.

Why did the majority reach that conclusion? Justice Alito opined for the Court that it "seems most unlikely [that i]f Congress had known that States would be free to authorize sports gambling in privately owned casinos, it [would] have nevertheless wanted to prevent States from running sports lotteries," because "State-run lotteries . . . were thought more benign than other forms of gambling." In other words, Congress would not have bothered forbidding the relatively minor problem of state-operated sports lotteries if in doing so the more serious problem of privately operated sports betting were left unregulated. The Court then extended this kind of reasoning to invalidate yet another provision of PASPA that, in the justices' view, was not severable because Congress would not have intended it to stand alone.

Described at a very abstract level, Justice Alito's severability analysis is consistent with prior law. The most straightforward example of a non-severable provision is a penalty provision. If the conduct rule is invalid, then the penalty should be invalidated with it, even if it is not independently unconstitutional. Why? Because it would be crazy to attribute to the legislature the intention to punish actors for failing to comply with an obligation that they cannot legally be required to comply with. Likewise, Justice Alito thinks that the state of mind one would have to attribute to Congress to uphold the additional provisions of PASPA after striking down its core is highly implausible.

Justice Ginsburg--joined by Justices Breyer and Sotomayor in dissenting on severability--and Justice Breyer--in his own separate dissent--call the majority to task for misreading congressional intent. They think that the additional provisions that the Court invalidates would have been sensible for Congress to pass even without the impermissible commandeering provision, and so they think the majority is wrong even on its own premises. But they also think those premises are wrong. Justice Ginsburg writes: "When a statute reveals a constitutional flaw, the Court ordinarily engages in a salvage rather than a demolition operation." She then cites language from various cases--including the landmark anti-commandeering case of New York v. United States itself--that deploy what might be best described as a presumption in favor of severability.

Who's right? If one were to consider the severability question as one of first impression, judicial modesty could be invoked for either position. For the Ginsburg approach, one can say, as she does, that courts should strive to preserve so much of the legislature's handiwork as they can. For the Alito approach, one can say, as he does, that severing effectively rewrites a statute, which is a task best left to the legislature after wholesale invalidation.

For my part, I think the question whether to sever is the wrong question. Courts must always sever; otherwise every case of unconstitutionality would result in the invalidation of the entire statute book. Thus, the question is always where to sever. We often don't see this because we don't always notice that severance is even occurring. Consider Marbury v. Madison. The Court invalidated Section 13 of the Judiciary Act of 1789 insofar as the provision authorized the expansion of its original jurisdiction to include the power to grant writs of mandamus even absent any other basis for original jurisdiction in the SCOTUS. But the Court did not invalidate the whole of Section 13, much less the whole of the Judiciary Act of 1789. Doing that would have been absurd. So, as I see the issue, there will always be severability. Therefore, the presumption of severability to which Justice Ginsburg points should be recast as a presumption in favor of more rather than less severability. Seen that way, the distance between the Alito and Ginsburg positions is not as great as it might at first appear.

Having considered severability as a matter of first impression, I hasten to add that it is not. The Ginsburg approach in Murphy is substantially closer to the approach taken in the prior cases than is the Alito approach.

That's not to say that the Alito approach won't become dominant. Murphy was not, after all, the first case in recent memory in which a bloc of the Court staked out a position in favor of maximal nonseverability. In NFIB v. Sebelius, the four justices who thought that the so-called individual mandate of the Affordable Care Act was invalid also thought that striking the mandate meant striking the rest of the Act on the ground that Congress intended it as one all-or-nothing package. Two of those justices (Alito and Kennedy) are part of the Murphy majority. A third, Justice Scalia, passed away. The fourth member of the maximalist nonseverability contingent in NFIB was Justice Thomas. Yet interestingly, Justice Thomas nominally joins Justice Alito's nonseverability opinion in Murphy, but writes separately to stakes out a completely new approach that is practically the polar opposite of the one he took in NFIB and that he joins in Murphy itself.

Although he joins the majority opinion in Murphy in full, Justice Thomas raises three objections to severability doctrine that, he thinks, may warrant its re-examination. (I'll order and describe his objections a bit differently from the way he does but in a way that I think is faithful to his substantive views.) Each of his objections is problematic in some respects.

First, Justice Thomas raises a textualist objection to the search for what Congress would have intended had it known that part of its statute were invalidated. We are governed by Congress's words, not its intentions, he says, and certainly not its hypothetical intentions with regard to issues it might not have contemplated.

This first objection strikes me as mostly sound, but leads not to the abandonment of severability doctrine but to the restoration of the version the Court has more commonly used in recent decades, which mostly tracks the Ginsburg approach in Murphy. Under that more common approach, a statute's invalid provisions and applications would be presumed severable, absent one or more of the following: (1) some constitutional rule forbidding severance, of which, as Prof. Fallon has shown, there are a great many, all essentially ignored by Justice Thomas in Murphy; (2) a non-severability clause in the statute; (3) a strong indication in the statutory text or structure that parts are interlinked, so that an otherwise valid provision makes no sense in the absence of the invalidated one; and (4) very clear evidence that Congress (or a state legislature for a state statute) would not have wanted the statute to remain in force once the unconstitutionality of some other provision was established. (Fallon uses slightly different categories but not in a way that is relevant here.) So far as I can tell, Justice Thomas offers reasons for thinking that evidence of type (4) alone ought never to be the basis for non-severability, but has no argument against the other three criteria.

Second, Justice Thomas thinks that the whole practice of severing statutes rests on an erroneous view of judicial review as invalidating statutes and statutory provisions. He cites Marbury and various scholars for the proposition that the power of judicial review is a mere "byproduct" of the power to identify the law to apply in adjudication. In this respect, he echoes Justice Scalia's dissent on the jurisdictional point in United States v. Windsor (the Defense of Marriage Act case), which he joined.

Justice Thomas is right about all of this as a formal matter. US courts lack the formal power to invalidate and excise statutes or parts of statutes, by contrast with constitutional courts in many other constitutional democracies. But Justice Thomas is wrong as a functional matter. Since at least the middle of the 19th century, the SCOTUS has adapted a power that formally only enables it and the lower courts to adjudicate particular disputes into a power that enables courts to pass on the validity of statutes. With respect to the Supreme Court, Congress has more or less ratified that transformation, as, over time, it has used its power to make exceptions to the Court's appellate jurisdiction to give the justices nearly completely discretionary control over their docket--precisely so that they may select for resolution those cases that raise issues of systemic importance. Justice Thomas's insistence that the Court just decides cases makes nonsense out of the Court's docket control power and the way it exercises that power.

In any event, Justice Thomas's protestations about the nature of judicial review do not do much independent work in his call for reevaluating severability doctrine. The real work is done by his third objection, which invokes principles of standing.

Suppose a plaintiff challenges Part A of a two-part statute and the court agrees that Part A is invalid. Justice Thomas complains that the court ought not therefore say that Part B is or is not severable, unless Part B also constrains the plaintiff's conduct in some way. The plaintiff should be required to have standing to challenge Part B in order for the court, having found Part A invalid, to pronounce on the validity of Part B. He writes: "The severability doctrine is thus an unexplained exception to the normal rules of standing, as well as the separation-of-powers principles that those rules protect."

Is that right? Maybe just a little, but it's mostly wrong, for three reasons.

First, sometimes the plaintiff who challenges Part A of the statute also challenges Part B in the same case. That was at least partly true in Murphy itself, although it's a bit hard to see because the parties challenging the law are actually the state defendants. The SCOTUS opinions are not entirely clear on this point, but we can assume that the state wanted not only to be able to repeal its prohibition on privately operated sports betting in violation of the statutory provision that the SCOTUS found unconstitutionally commandeered but also to be able to conduct gambling lotteries in violation of one of the provisions that was not independently unconstitutional but was deemed nonseverable from the invalid provision. In such cases, there is no standing problem with reaching the severability issue.

Second, in still other cases, a plaintiff may have standing to raise severability because the plaintiff is injured by Part B alone. Such cases are routinely denominated "facial challenges" and nominally disfavored, but as Fallon, I (here) , and others have argued, the actual Court practice is much more favorable. I'll give a schematic case to show just one example.

Suppose a state wants to use its tax law to discourage high levels of carbon emissions. It places special taxes on the purchase of (A) oil derived from tar sands and (B) coal. Suppose further, however, that virtually all the oil derived from tar sands used in the state comes from outside the state, while most of the coal is produced in the state. State legislators worry that someone will challenge tax A as a violation of the dormant Commerce Clause as discriminatory in effect. If that challenge succeeds while coal remains subject to the tax, the state will be favoring tar-sands oil from out of state over coal from in state, which it wants to avoid. Accordingly, the legislature writes a nonseverability clause: Provision B shall only be effective if Provision A is effective. Now suppose that coal purchasers challenge Provision B in advance of any challenge to Provision A by the tar-sands-oil purchasers. The coal purchasers say that B is invalid because A is invalid. Is there standing?

I don't know what Justice Thomas would say, but I would say yes. Legislation can be contingent on any number of facts in the world. For example, various laws make the level of benefits and burdens depend on the rate of inflation. If a plaintiff sues the government because she believes that she is legally entitled to a cost-of-living-adjustment that she has been denied, she clearly has standing and can make arguments about the actual rate of inflation and its consequences. Likewise in my tar-sands/coal example: Subject to the statutory limit on jurisdiction of the Tax Injunction Act, a coal company can sue to block Tax B on the ground that it is nonseverable from Tax A and argue that Tax A violates the dormant Commerce Clause.

To be sure, a federal court might want to put off such a case. The case by the coal company asserts third-party standing: what makes Tax A invalid is its impact on oil from tar sands, not coal. But the third-party standing doctrine is prudential, not a product of the Constitution's Article III. Yet Justice Thomas's objection to severability purports to raise an Article III concern. In many circumstances, however, it does not.

So let's consider the kind of case that Justice Thomas most clearly has in mind. Plaintiff challenges Part A of some statute that affects the plaintiff and obtains a ruling that Part A is unconstitutional. The plaintiff is not affected by Part B, but the Court goes on to rule that Part B is or is not severable. That second ruling raises a standing concern, says Justice Thomas. He's right about that, isn't he?

The answer comes back to what it is we think the Supreme Court and other courts are doing when they decide cases. If they are just resolving the dispute between the parties, then yes, there's a problem here. But that account is difficult to reconcile with how the Court actually operates. Above I gave the example of discretionary control over the docket. In addition, the Court's edict with respect to the "order of battle" in cases involving qualified immunity undercuts the view expressed by Justice Thomas. Under Pearson v. Callahan, if a plaintiff sues a state or local official for damages, and the latter argues that he is entitled to qualified immunity even if he violated the plaintiff's constitutional rights, a court may decide the constitutional issue despite the fact that the court agrees that the defendant is entitled to qualified immunity. Why? Because if courts only ever decided the qualified immunity question, which asks whether the officer violated clearly established constitutional rights, the courts would be limited in their ability to provide guidance to government officials about what rights are clearly established. Put differently, the Pearson procedure allows that the future-guidance function of the law sometimes overrides the strict conflict-resolution-only conception of litigation that Justice Thomas advances in Murphy.

Now this is not to say that there are no limits on the guidance function. In the course of deciding a case involving a tax on mushrooms, the Court can't say "oh, and by the way, Roe v. Wade is hereby overruled." At some point, dicta becomes an advisory opinion. But Justice Thomas's opposition to severability determinations rests on a pointillistic conception of litigation that cannot be reconciled with the Court's actual practices.

Finally, it is worth noting an oddity of Justice Thomas's separate opinion. He is concerned that the Court's severability doctrine has gone off the rails. He even suggests that there should be no severability doctrine, but he doesn't say what he means by that. Does he mean that invalid provisions should never be severable? That clearly cannot be right, because, as I noted above in my discussion of Marbury, there must always be some severability. Accordingly, it looks like the practical operationalization of Justice Thomas's concern would be to have an irrefutable presumption of severability in the first case, with any ruling of nonseverability delayed for a future case in which it clearly affects a party with standing.

But if that's Justice Thomas's preferred approach, at least for the time being he ought to be joining those Justices who favor more rather than less severability under current doctrine. That would mean joining Justice Ginsburg in Murphy and disavowing the maximalist nonseverability opinion he co-authored in NFIB, the Affordable Care Act case. Yet he joins the Alito majority in Murphy and fails to acknowledge his sin (by his lights) in NFIB.

Justice Thomas deserves some credit for calling attention to the Court's failure to fully justify or consistently approach severability issues. However, he has not thought through his own commitments or even his own votes in recent severability cases.