What should the Supreme Court do when it finds one provision of a statute unconstitutional? There is a significant split between current Justices on the question where Congress has not provided express instructions on severance within the statute. Several believe the Court should save the rest of the statute, while others have expressed skepticism towards this practice.
This distinguished panel will explore the foundations of the severability doctrine and the authority of Article III judges in such cases. Panelists will offer their differing views of severability and discuss where the doctrine may be headed.
- Prof. William Baude, Professor of Law, University of Chicago Law School
- Prof. Josh Blackman, Professor of Law, South Texas College of Law Houston
- Erin M. Hawley, Senior Legal Fellow, Independent Women's Law Center
- Prof. Kevin C. Walsh, Assistant Professor, University of Richmond School of Law
- Moderator: Megan L. Brown, Partner, Wiley
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
Dean Reuter: Welcome to Teleforum, a podcast of The Federalist Society's Practice Groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.
Nick Marr: Welcome, everyone to this Federalist Society virtual event. We’re sorry for the late delay, but we’re about to get started here in earnest. This afternoon, July 8, 2021, we have an event panel discussion on “Severability and Article III Powers.” I’m Nick Marr, Assistant Director of Practice Groups here at The Federalist Society. As always, please note that expressions of opinion on today’s call are those of our experts.
We’re very pleased to be joined by a great panel. They’ll be introduced shortly. I’m just going to introduce our moderator. Before I do that, a note for the audience. We’ll look to you for questions towards the end of the program, so please submit those via the chat function so we can take them as we go along. We appreciate that.
With that, we’re joined today to moderate this discussion by Ms. Megan Brown. She’s a partner at Wiley, formerly Wiley Rein. Her longer bio can be found on our website on this event page specifically. With that, Megan, thanks very much for being with us today. I’ll hand the floor to you.
Megan Brown: Awesome. And I do like the shorter intros. That’s fabulous. Thanks, everyone, for joining us today.
My private practice is pretty varied at this point, but as is relevant to today’s conversation and why I was excited to join, it touches on really important questions of federal power, including statutory interpretation and judicial review of acts of Congress as well as agency action. Severability has often been at issue as we look at invalid parts of law and regulation. It informs both our view of the constitutional powers of Article III judges but also litigation strategy and some of the decisions that are made about whether and how to challenge legislation, including some pretty important cases in recent terms.
Today’s event is as timely as it is heady because it goes to one of the more interesting questions of Article III power as well as high stakes litigation that we all watch, especially as the June month comes to an end and we’re all watching for our favorite cases. And the question is what should the Supreme Court do when it finds a provision of a statute unconstitutional?
We have some really fabulous speakers here today to walk through their different views, the doctrine of this, but suffice it to say there’s a significant split right now between some of the justices on this question of what to do where Congress hasn’t provided express instructions, or perhaps when they do have a severability clause and what the presumptions are going to be there. Several justices think that courts should save the rest of the statute while others express skepticism about this, really raising it as a separation of powers question.
I’m going to introduce our panelists, and then we’re just going to dive in. They’re going to give some remarks, and then we’ll open it up to questions.
Will Baude is professor of law at University of Chicago where he teaches federal courts and con law. He’s written a bunch, he talks a bunch, he’s a big thinker on these issues, and I look forward to hearing what he has to say. He’s going to kick us off in a moment with a thumbnail sketch of severability for those of you who had to dust that off from your federal courts class.
Kevin Walsh is assistant professor at the University of Richmond where he teaches and writes about federal jurisdiction, con law, and complex litigation. He has focused a lot on the doctrines that define and limit federal judicial power. Professor Walsh -- nope, I’m not going to do all that. That’s on the website.
Erin Hawley is a senior legal fellow at the Independent Women’s Law Center which files briefs in interesting and contentious cases. She’s been an associate professor at University of Missouri where she taught constitutional law, among other courses. She’s been in private practice, and she also worked for my former boss as well, Attorney General Mukasey, so that’s a nice, little, fun factoid.
And then we have a surprise mystery guest that will be joining us midway through in what I hope will be an innovation for FedSoc telefora in the future. Josh Blackman is going to be joining us in a little while. He is, not surprisingly, double booked because he does a lot of these kinds of things. The website calls him a thought leader on constitutional law, but he’s been a professor for a long time at South Texas College of Law and is an adjunct at the Cato Institute. He’s written a bunch of books, he’s written a bunch of law review articles, and I think you’re all pretty familiar with him.
This is the dream team you have to talk about severability and Article III power, and I think Will, Professor, you are going to give us a quick introduction to severability for those who have some cobwebs, and then jump into your views. The way we’re structuring this is all of our panelists are going to talk for five to seven minutes, maybe. We’ll see who goes over. And then we’ll lay out different perspectives on severability, and then we’ll have a conversation about it. Take it away, Will.
Prof. William Baude: Thank you. The doctrine of severability has been at the center of at least six recent Supreme Court cases in the past three years. First, Murphy v. NCAA in 2018, where Congress held inseverable a major federal regulation of gambling. Then Barr v. The American Association of Political Consultants in 2020, where the Court severed part of the ban on robocalls from an exception to the ban on robocalls that violated the First Amendment. Then a case called Seila Law v. The Consumer Financial Protection Bureau, where the Court held that the structure of the agency was unconstitutional but not invalid if it had been done by the head of the agency.
And then in three cases that we’ve seen in the past months, California v. Texas, where the Court declined to invalidate the entire Affordable Care Act as inseverable for reasons that were entangled with the doctrine of standing; in United States v. Arthrex, where the Court dealt with the structure of appointees to a patent, a quasi-court; and Collins v. Yellen, where the Court dealt with another agency, the FHFA which also had a similar structure to the CFPB.
In these six cases, the Court has been confronting the recurring problem of what to do when part of a statute is unconstitutional. Does that mean the entire statute is unconstitutional, the entire U.S. Code? How do you disentangle the unconstitutional parts of the statute from others?
And the Court has purported to apply the kind of conventional black letter law, which is that when one part of the statute is invalid, the invalid part can be dropped. There’s a presumption of severability so long as the parts that are left are fully operative law, and so long as it is not evident that Congress would have not wanted those provisions to survive. So there’s a presumption that you sever the statute, that you save the statute, and then possible rebuttals for the presumption if the statute seems like it wouldn’t work or if it seems like we’re really sure that Congress wouldn’t have wanted that.
That standard view has come in for a lot of different kinds of skepticism. People ask why is it the court’s job to save statutes? Shouldn’t the courts just apply the law and let the chips fall where they may? Isn’t saving things Congress’s job, not the court’s? How is the court supposed to know what Congress would have wanted to have happen? Maybe Congress left behind a severability or inseverability clause that tells us what they wanted to have happen if there was a constitutional problem, but most of the time, they didn’t. And so then, is the court supposed to imagine what Congress wanted? Is it supposed to look at individual legislator’s minds? Is it supposed to imagine what a reasonable Congress would have wanted, which is often the same thing as what the judge would have wanted, or something else?
And I’d say, especially with the rise of various aspects of formalist interpretation, these pressures are increasingly strong. So in ordinary statutory interpretation, the orthodox view is that courts are supposed to apply the text enacted by Congress, not what Congress would have wanted, not what would be a good idea, not engage in any kind of either mindreading or policymaking. And yet, severability analysis seems to call upon them to engage in a combination of mindreading and policymaking, so it puts the courts at a very tough spot.
As a consequence of these critiques, I think, several justices on the Court have expressed a revisionist view, have rejected this general approach to severability. They’ve said courts don’t have a so-called erasure, as Jonathan Mitchell has put it in a great article. All they should do, all they have is the negative power to just not apply the law when it’s unconstitutional, and they shouldn’t be making any of these kind of severability or inseverability choices. Those are a series of opinions by Justice Thomas and Justice Gorsuch, each joined by the other starting in Murphy v. NCAA. And that’s where we find ourselves today.
So what should we make of all this? We have a lot of time for back-and-forth, so I’ll just sneak in my views quickly. In my view, the revisionist view is correct, but it’s not as simple as it seems, and it’s not clear that the justices who put it forward understand their own view.
Here’s the right way to think about it. They’re right to say courts don’t have any sort of policymaking or mindreading powers. All they do is apply the law. Indeed, courts don’t even have a general power to strike down statutes. What Marbury v. Madison tells us is that courts are just supposed to decide the case before them and apply the law that it would be constitutional to apply in that case. So if there’s a statute, you apply it, unless it’s trumped by a constitutional provision, in which case, you don’t apply it because the court can’t itself be a party to a violation of the Constitution. So that’s the negative power to disregard a law. Courts should just disregard things that are unconstitutional. They purport to be laws, but they’re not really laws.
Now, as a side effect of that, the court’s duty is just to apply the law, including the Constitution when it’s superior to a statute. If Congress has left behind some kind of instructions, what people might call a fallback law, what to do in case of unconstitutionality, courts should apply that too, assuming it’s constitutional. The most common forms of those are severability. And in severability clauses, Congress says if part of the statute is unconstitutional, here’s what we want you to do. Courts should apply that too. Occasionally, Congress does something more elaborate and says if this agency structure is unconstitutional, here’s our backup agency structure. Courts should apply that too.
Strangely, under current doctrine, they don’t do this. Under current doctrine, severability and inseverability doctrines are just rules of thumb or guidelines, one more piece of evidence of what Congress might have wanted. And I think the court is starting to recognize that under modern textualism, that’s not right. It has to take them more seriously, and they’re just law. They should be applied, whatever they say.
The hard part if what to do, so this is where the justices struggle in the applications. Just to take a few quick examples for -- a few quick hits in my last minute of airtime, when confronting the Affordable Care Act, Justice Gorsuch and Justice Alito in their dissent to California v. Texas acted as if the Affordable Care Act contained an inseverability clause. They acted as if some part of the Affordable Care Act said, “Hey, if the individual mandate is unconstitutional, just let’s call the whole thing off.”
But there isn’t a clause like that in the Affordable Care Act. What there is is a statutory finding that the individual mandate is essential to all the Affordable Care Act, all of ERISA, all of federal public health law. But there’s nothing like an inseverability clause or an instruction for the courts to apply.
And the justices, Justice Thomas and Justice Gorsuch, have come apart in this term’s separation of powers cases, Arthrex and Collins, about what to do when essentially the constitutional problem comes from a combination of statutory provisions that are unconstitutional. If we say you can’t have this kind of executive power and not be removable by the president, and the statute tries to give people executive power and make them not removable by the president, what do we do? Do we get rid of their executive power, or do we get rid of their removability?
There’s no obvious answer in the orthodox view for which one of those should trump. I have my own view, but Justice Thomas and Justice Gorsuch have split about how to implement their own view because that’s a harder question that we still need to work out.
Megan Brown: Well, thank you. That was a very helpful overview for those of us who aren’t in the weeds of all of those six cases that you went through, so that was great to level set. Kevin, I think you’re up next to share some thoughts. And welcome, Professor Blackman.
Prof. Josh Blackman: I’m sorry. I was doing the Heritage Scholars and Scribes. I just finished, so one to the next. I’m happy to be here.
Megan Brown: We appreciate you joining us, even midway through. And you’re four minutes earlier than I expected, so thank you. That’s great.
Prof. Josh Blackman: Always on time.
Prof. Kevin Walsh: Well, great. Thank you, Megan. And thank you Erin and Will and Josh for doing this event.
The title is “Severability and Article III Powers.” And I’d actually like to pick up on the second piece of the title, picking up -- it’s not a surprise that Will is a supporter of what we might call the revisionist view. I call it the old school view or the old orthodoxy. In the Murphy v. NCAA opinion by Justice Thomas, one of the law review articles cited was one by Professor Baude called “The Judgement Power.” And in a nutshell, the argument is that the judicial power of the United States is the power to make judgement. That’s the power of the court. And it’s to make judgements, and that’s it.
Now, there’s more. We can say those judgements might come with remedies and injunction, do this, or don’t do that, or a declaration, your rights are X, Y, and Z, that kind of thing. And I think that’s right. So if we think that the judicial power to change the law operates through judgements, through remedies, and then through precedent, so we might say res judicata remedies and reasons that the Court gives that then are binding elsewhere in the judiciary, those are the three ways that the judicial power can change the law.
Off of that list is any legislative change. So one thing that the current Court agrees on and one of the nice features of this current ferment is that a majority of the Court explicitly acknowledges that the judicial power in this thing we call judicial review is, in the words of Massachusetts v. Mellon, a 1923 case that’s been cited a whole bunch lately, the negative power to disregard an unconstitutional enactment.
Picking up, then, where Will left off, a lot of these severability cases do have a preliminary question about, well, which one do you disregard when the unconstitutionality is a combination of a lot of things? Instead of saying, well, here’s the right answer, you say where do you look for an answer? I think generally you look for an answer in substantive constitutional law.
In a case where they explained in Arthrex, “We’re going to instruct courts to disregard the limits on review of decisions of administrative patent judges,” they did that rather than give you a redo in front of different judges because they isolated the problem to the absence of review rather than a problem with the way they were appointed. And that’s just an argument about substantive constitutional law about what was wrong.
One question that I’d like to put on the table for all of us is when do courts do severability? An important article by Brian Lea called “Situational Severability” was written in the wake of NFIB v. Sebelius, and he says there’s a different approach depending on when you do severability analysis, if you do it at the jurisdictional justiciability stage, at the merit stage, or at the remedy phase.
I would suggest that severability is actually limited to the end of the case. And what you’re trying to do is answer a question of statutory interpretation, but it’s not your normal type of question where you ask what is the law? What has been the law? What’s the law that’s governing this case? It’s in some ways an extra question. It’s what did Congress provide about what would happen, what would be the law, after a conclusion of unconstitutionality in some regard?
So if you think about cases where you have explicit fallback law where Congress says, “If any of these procedures are deemed unconstitutional, here’s a backup set of procedures to use,” as they did in the case of Bowsher v. Synar, the Gramm-Rudman-Hollings deficit reduction act, we might think of the law that results from severability as a kind of judicially activated fall back law. So what the courts are doing is not changing the law, but they are making a determination, they’re doing something in the world that then triggers backup law that Congress has provided.
Typically, Congress doesn’t provide backup law. Well, that means then there’s no other law. They just do what they do and let the chips fall where they may. That would be my suggestion about timing. And hopefully later on, we can discuss what implications, if that’s right, or if it’s wrong, this has for the doctrine of standing by inseverability. But for now, I’ll leave it at that.
Megan Brown: Well, thank you. I think, Erin, you’re up next.
Erin Hawley: Great. Thanks so much, Megan. Thanks for having me on. I wanted to press a little bit on the revisionist thoughts of severability. I think most of us on the panel are sympathetic to that and that the judicial power is limited to this negative power to disregard a statute that Will and Kevin have spoken about. That seems to be an appropriate limitation of Article III, especially in contrast to Article II and the legislature’s ability to make law as the Constitution provides.
But I think that if you look at the background of some of the cases giving rise to the severability doctrine, there’s this idea that severability is itself enforcing separation of powers principles because it is saving that part of the statute that Congress itself enacted. So the idea is that Congress enacted this massive statute, take Obamacare for example, which we’ll talk about a lot, I think, on this panel, and they’ve got this massive 900-page statute.
A one-time provision in unconstitutional, or maybe lots of it is unconstitutional, but if we assume a tiny bit is unconstitutional, then should an Article III judge strike down the tiny provision, or should it strike down this massive 900-page statute? Which is less disruptive to the Article I power to legislate? So I think that’s some of the background of why severability might be attractive to those who see a limited view for judicial review.
And I think in that context, it’s interesting to place severability in the context of other doctrines that have the same function and to think about whether they’re different or maybe they’re the same and suffer from the same problems. But if we think about the rule of constitutional avoidance, and typically courts will look at constitutional avoidance, and just as Will explained, there’s a presumption in favor of the severability of a statute, so too there’s a presumption in favor of the constitutionality of a statute.
And as most of the audience is aware, and certainly the panelists, the Court has at times gone to extreme gymnastics in order to save statutes. Again, we could look at Obamacare and the different ways the Court has looked at that statute. Again, there’s this idea that maybe the Court is being less intrusive into the role of Congress because they’re saving the statute, which I think accords with the more traditional or the middle term view of severability.
And I think the same can arguably be said of the Chevron doctrine. Again, a very different doctrine, but the idea from the Chevron case is that courts are supposed to defer to agencies because agencies, as an arm, or not, arguably an arm of Congress, are vested with Congress with the ability to fill in statutes. And thus, it would be contrary to the judicial role for the judiciary to fill those statutes in with what it thinks the law is rather than to defer to agencies which Congress left in charge of filling in these gaps.
That’s not how I understand Chevron. I think that that doctrine is extremely problematic. But I think you can see a theme in both constitutional avoidance, the Chevron doctrine, and severability of this idea that we want courts to do less in order to leave more of what Congress wrote.
And so I think that that’s an interesting idea thinking about severability. Which is more faithful to separation of powers principles, to leave more of what Congress wrote or instead to, as Will said, refrain from redlining or mind-guessing what Congress might have wanted, so some thoughts for conversation.
Megan Brown: Awesome. Thank you, Erin. A lot of doctrine thrown in there. I was like, ooh, Chevron. We’re doing all kinds of stuff today. So Josh, last but certainly not least, and thanks again for joining us. Your thoughts?
Prof. Josh Blackman: Thank you. It’s a pleasure. This is such a good panel. We’re all people who are on the right of center, don’t always agree, that I think is some of the best that FedSoc has to offer.
So I’m on this panel. We have to talk about Obamacare. I’m sorry. In California v. Texas, I was probably the leading proponent of the so-called standing turned severability, and I got my butt kicked. So I can live with that. But I just want to explain why I thought this theory might work, and when you don’t even get Clarence Thomas’s vote, you’ve just got to hang them up.
The theory is simple. The mandate was unconstitutional. Obamacare told us that. And as I read the statute, the mandate was inseverable from other provisions. Now, I know that Congress this and Congress that, but just in the abstract, I thought that if we assumed that the mandate is inseverable from the provisions, there was an injury, and you can enjoin the enforcement of those other provisions, so you get redressability and traceability, you get Article III standing.
The majority in California v. Texas ignored that argument. They said it was waived. It wasn’t waived. I lived this litigation. I have a book in the -- I’m writing a book about it. This argument was raised below, but whatever. The majority didn’t want to touch it. Justice Alito in his dissent said it was a novel argument. He didn’t want to touch it, either.
Justice Thomas, though, had a footnote, and oh man, that footnote. He said assuming it’s even a theory, which is a Thomas way of saying, yeah, no way, Josh, sorry. So I think Justice Thomas has made clear that the linkage between standing and severability occurs only at the remedial phase and not at the entry level phase.
During the oral arguments, though, there was a good colloquy between Don Verrilli and I think it was Justice Alito where they were discussing this. And Alito said what if you had a provision, a statute, with three aspects. One of them actually inflicts an injury. And the second provision has an obvious racial discrimination. And these provisions are inseverable. You can’t separate them. But the racial segregation provision doesn’t inflict an injury. And Alito asks, really, would that get you to federal court? And Verrilli said that stretches the limits of our theory, basically saying, yeah, that would work. So I think there might be a case where standing considerably works, but Thomas has poo-pooed it.
And I think Justice Thomas is definitely the most interesting man. He’s the most interesting justice by a mile. He is such a thinker, and I think his position on severability changed from last year in Seila Law to this year in Collins and Arthrex. And maybe Kevin and Will and Erin can correct me, because there was one part where Gorsuch said, “Thomas, last year, you said this is how we’re going to do it, and now you’re saying something different.” And then Thomas says, “Well, maybe I am.”
So I think we’ve even seen a shift from 2020. Maybe the pandemic gave some time to think. But from 2020 to 2021, I think CT has evolved. And his position in Collins is absolutely fascinating. I hope we have time to talk about it. John Harrison put in the amicus brief which I found fascinating where Harrison had this sort of existential question. If a revision is unconstitutional, it’s like it never existed. It’s like Schrodinger’s statute. If it’s unconstitutional, it’s never actually in the statute; therefore, there’s nothing to sever.
And if you read Thomas carefully in Collins, he seems to be saying that there was no for cause protection because it could never be enforced. It was an unconstitutional restriction. If Thomas is right, almost everything we know about severability remedies are just helter-skelter.
Let me have one final point. So far, there have been consistently five or six votes to rule in favor of the conservative cause. But in a future case, if Thomas does his thing and the liberals put up a vote or two, that could flip the case. So actually, the Thomas idiosyncratic approach to sanding and severability could actually result in judgements against the sort of right side of the case, again, which is why he is the most interesting justice. He just thinks things through, he says things, and then law professors like the three of us, four of us, have to start thinking about it and rewriting everything we know.
So I’ll leave it there. I think there’s a lot of time for Q&A. And again, I’m so happy to be here with Erin, Kevin, Will, and Megan, just such an august panel. Thank you so much.
Megan Brown: Well, thanks for joining us. And to pick up on that last thread, if found myself wondering what the right or conservative side was that you’re referring to. And that leads me to my first question because I can’t help but think -- and I hope you don’t think I’m channeling cynicism here, but is there really a principled approach to severability at this point? It feels, and I think certainly probably feels to anyone looking at some of these decisions that severability decisions or analysis may be reverse engineered to either avoid hard questions or avoid unintended consequences. And that may be why it’s a little fluid in its actual doctrinal components and application.
But to get us going, do you think there is a principled approach to severability right now that’s not just outcome determinate? And I’m not going to pick on one of you. I’m going to leave whoever wants to just jump in. But if you don’t, I will pick on one of you.
Prof. William Baude: I’ll say yes. I think actually the reason its so fluid is sometimes when cases are doing this kind of thing, we smell politics, and we’re right to smell politics. I don’t think that’s what’s going on here. I think what’s going on is severability is really hard, and our intuitions are inadequate because we have an intuition that judges shouldn’t be doing judicial lawmaking.
And both of the natural things to do in severability actually feel like judicial lawmaking. So throwing the entire statute out because of one tiny flaw that comes up in a case feels like an aggressive act of judicial lawmaking. But doing anything else, picking and choosing parts of the statute so you’re throwing out only part of the statute, results in a half-statute that Congress didn’t enact. And that also feels like judicial lawmaking.
But I don’t think that means there’s no principled approach. I think that Justice Thomas and Justice Gorsuch are on to something. I just think, in a way, it’s like calculus. There’s a certain level of math we do in our heads, and then sometimes you get to the harder problem, and it just turns out that there’s an advanced level of science you need to solve the problem. You don’t need them in most cases, but every once in a while, you have to call you college math professor.
Megan Brown: Which is frustrating because when you actually lay out the elements of the severability presumption, it’s deceptively simple. Any other thoughts on reactions to Will, or is there a principled approach? Kevin?
Prof. Kevin Walsh: Yeah, I’ll go. I think severability doctrine has the advantage of a nice name, and everybody thinks we need it. And the name’s always misleading because as the Court recognizes and as we’ve, I think, recognized, severing is not something that they do. It’s not a thing. In some ways, it’s a question of what follows from this judgement? Whether on the revisionist view or not, when they say that something is inseverable and therefore entirely unenforceable, if you go the next day and look at the U.S. Code, the words are still there. And so it’s more just what kind of effect are they giving?
The principled approach, I think, is to say what business do we have doing anything other than declaring the law that is necessary for this particular case? Inseverability is almost never necessary, and sort of reaching that question is almost never necessary. And what’s weird about, I’d say, the unreformed view is having recognized the metaphorical nature of severance or excision, they nevertheless projected backwards as if this existed for all time.
So Justice Kavanaugh’s opinion for a plurality in the Barr case said, “Look, John Marshall did it in Marbury v. Madison.” And it’s like, no, he did not. Do not blame John Marshall. And he didn’t wring his hands about after we’ve decided that the Supreme Court lacks jurisdiction to issue mandamus in the exercise of its original jurisdiction. He didn’t say, “Oh, gosh, if only our Oliver Ellsworth had drafted this thing, I would know whether the rest of it needs to fall.”
So I guess to me, I’d say is there any principled approach to doing anything other than letting the chips fall where they may as a matter of constitutional law. And people call that a presumption of severability, but that assumes that you need to do something in order to contain the case. But that something usually happens on the front end with justiciability doctrine that says what you are allowed to complain about and what they are allowed to redress.
Megan Brown: So, Josh, you were shaking your head very vociferously there. But I think you were -- I think you --
Prof. Josh Blackman: -- I agree. Yeah, we can blame John Marshall for a lot of things, but severability is not one of them.
Look, I’ll give you the example of the one that ticks me off about severability, which is Whole Woman’s Health. This was the abortion case from a couple years ago. And then Texas passed this law requiring certain surgical standards for abortion clinics. But there was one provision that required smoke detectors, that abortion clinics had to have smoke detectors installed. And Justice Breyers said with a flick of wrist, “Well, we can’t sever that provision, so we’re going to strike it down.” Come on. A smoke detector imposes an undue burden on abortion? It just strikes me as surreal that you have a statute that requires installation of a smoke detector, and that has to go because there’s an undue burden on abortion, that a $5 smoke -- anyway.
So that is the case with left versus right. I think both sides abuse it in any given case. And I’m grateful that Justice Thomas and Gorsuch are bringing some intellectual rigor to the discipline because at least, as it was in Whole Woman’s Health, it was bizarre, incoherent.
Megan Brown: I wanted to take us in the direction of the tactics of severability. So I was reading some commentators who’ve called who referred to this atomistic approach where, in many cases, they’ve been focused on these individual remaining provisions, and they’ve gotten sort of pointillistic or atomistic as opposed to the function of the whole statute. And this commentator was saying by focusing on these individual provisions, you can minimize the impact of nonenforcement. And maybe that is, to what Erin was saying, more respectful to the legislature. I think there’s really interesting questions we can get into later about what really is most respectful of Article I. But is this so-called atomistic approach, do you think, more or less respectful of the legislature?
Prof. Kevin Walsh: Yes, I think maybe I’ll just start us off on this one, perhaps, if that’s all right. The atomistic approach or the provision by provision approach does seem to me to be a function of justiciability doctrine in that, especially after California v. Texas, which as Josh says, they didn’t formally address standing through inseverability. But I think that the approach to standing that is there funnels statutory provisions that they can then start from.
And I think this is important because it’s sort of counterintuitive, but the severability test, at least as currently formulated, is asymmetrical. That is, it depends which one you start with. So take the Affordable Care Act. The question in severability is if this provision is no longer enforceable, let’s skip the first part, can it operate as law, the rest operate as law? And we say would Congress have preferred what is left? Well, if you pull the individual mandate out, there’s one answer, perhaps, to that question.
But then take something like the employer mandate. It may be that the thing can work with one and not with the other, depending on which one you say can you do without this, or what would Congress have preferred without X? It matters what X is. And then what California v. Texas does is say here’s the rules about what you need to do to challenge X. You need to go for the -- you need to show concrete injury traceable to the allegedly unlawful conduct of enforcing that X. There might be Y, and you say Y should fall if X falls, but you have to show first the conduct of X affects you.
So I think whether or not it’s more respectful of the legislature, it we’re stuck, and I think it’s a good thing with this funneling that happens from justiciability, if that makes any sense.
Megan Brown: That makes sense. Any reactions to that?
Prof. William Baude: I guess I’d add I think that it’s most respectful to the text to treat the text in this kind of atomistic fashion because there are a bunch of textual provisions, and you just deal with the ones you have to and leave the other ones alone. And then the question is, is there something else? Is there a legislative will or a legislative purpose outside of the text? If you think there is such a thing, then maybe the courts should be more respectful to it and use that broader legislative purpose as a tool of statutory interpretation. But if you think there isn’t such a thing or courts can’t find it, there’s nothing to respect.
Megan Brown: Doesn’t that then sort of go towards the second part of the test or the presumption, which is you put the text on one side, and you look and see does the statute make sense, does the statute function? But I feel like much of it is comfort with some of the severability analysis shows up at the back end or the second piece of it when you’re speculating about would Congress have enacted this, or would the state legislature have done this?
And that’s where I think my own discomfort comes, which you’re sort of reading tea leaves, you’re elevating legislative history. But is that the rub here, that we’re getting away from that latter part that maybe we’ve been more uncomfortable with?
Prof. William Baude: I think this is where it’s not just Justice Thomas and Justice Gorsuch. Justice Kavanaugh in his plurality opinion in Barr v. AAPC was dealing with severability problem. He described this kind of like the back end, what would Congress have done, question. And he said this is our text, but experience shows that this formulation often leads to an analytical dead end. That is because courts are not well quipped to imaginatively reconstruct a prior Congress’s hypothetical intent. As to severability or non-severability clause, a court cannot really know what two houses of Congress and the president would have wanted if one provision were later unconstitutional. I think that’s the rub.
Megan Brown: Yeah, because there does seem to be some artificiality about that, which is there’s the realpolitik of what could they have achieved without this clause, which maybe is different than what they really wanted to happen. And I think you see that in a bunch of these different cases.
My firm does a lot of the technical robocalling stuff, so we watch that with no small degree of horror, thinking, oh, the whole thing might go down, and then -- which in certain respects might be sort of funny but is also sort of terrifying as a policy matter. I have no doubt that the justices have the same thing in the back of their minds, that we will not be the ones who unleash a wave of robocalls on America. But I have to think that that colored their views.
Prof. Kevin Walsh: Can we ask you a question, Megan?
Megan Brown: I didn’t sign up for that. [Laughter]
Prof. Kevin Walsh: On Barr, so you have this weird thing. Imagine it never got to the Supreme Court. So you have a law that says no robocalls to cell phones. We’re paraphrasing. And it’s totally fine. And then, again, paraphrasing, no robocalls to cell phones unless you’re collecting government back debts. And that’s 2015. And so Congress unleashed a wave of robocalls. It’s debt collectors. Okay, fine. And then people want to unleash another wave, the politicians. And so they go to court. And so they lose, or they win. Do they win or lose? They win, and it says, yep, the law is unconstitutional, but we’re going to snip out that exception.
So it would seem to me that the people who were unleashed in the first wave, the ones unleashed by Congress, would have been kind of in trouble. And yet, if it weren’t the -- if they weren’t in, say, the Fourth Circuit, or whatever was governed by that, what do people advise clients? And perhaps you can’t say because it’s about client advice, but doesn’t -- isn’t there a problem with severing an exception by broadening the scope of criminal and civil liability, and what does that even mean?
Megan Brown: I think it’s super interesting to think about how the consequences of these things play out. I was listening -- Sarah Isgur, David French, they -- I was boning up on severability by listening to their podcast. And they keyed in on this exact case. And they said the perverse result is, as a result, less speech. So when you think about what it would have meant to strike down the statute, I think maybe Congress would have been in trouble because by creating the exception, they sort of Swiss-cheesed the statute.
I think when it comes to advising clients, lots of people were watching the severability analysis because obviously there’s bigger cases at stake than the robocalling case. It was kind of a bellwether, I think, perhaps people thought for other cases.
But I think there, Congress -- this is where my -- I’ll turn it back to you guys. Is severability taking Congress off the hook when maybe the cleaner and more respectful thing to do to the Article 1 power as a limitation is to send stuff back to Congress and say, “You blew it. You can’t create an exception that patently violates the First Amendment. Start over. Don’t go down this path and then have us fix it for you by playing games with severability.”
Prof. Josh Blackman: Yeah, this was basically the approach in the Obamacare case with the Scalia, Thomas, Kennedy, and Alito joint opinion. It’s like, “We don’t know what Congress would have done, so just start from scratch. We’ll send it back to the drawing board.”
Of course, that presumed that the political will is there. Obamacare was passed in a very unique moment in American history with 60 votes in the Senate. By the time 2012 rolls around, this was not a popular statute. So again, this gets back into realpolitik. Congress won’t reenact this thing. Well, yeah, Congress, go fix this. It’s like saying, “Ha-ha, you won’t do anything. It’s gone.” So it’s this sort of trap.
Prof. William Baude: And I think if Congress knew what they wanted, they would either do it, they would fix it—nothing stops them from fixing it, even if there’s a severability holding—or they would have told us in the first place. They would have enacted a severability or inseverability clause. So in a way, when Congress has made clear, “We’re not going to clean up the mess,” I’m not sure it’s respectful to take the mess and shove their face in it and say, “Well, you have to clean it up.”
Megan Brown: I don't know. It sort of feels like we’re then -- well, maybe not we. It sort of feels then like the judiciary would be acquiescing to the dysfunction and acquiescing to that throw your hands up, Congress won’t do anything, so we need to then tinker around to mare sure things survive, which raises the next question I was going to ask you guys, which is, given the apparent dysfunction in Congress, should the courts treat severability as a way to respect a Congress that can’t often get together to legislate? Stuff that comes out right now is few and far between.
How should that impact how we think about severability or how the judges think about it, because I’m torn about what’s more respectful, to impose upon them some discipline to say, sorry, go back. Sorry you’re dysfunctional, and we know politics has changed, but try again. That feels potentially quite respectful of the Article I role to be the givers of law, notwithstanding their own dysfunction.
Does it matter -- just to summarize, should we care or should it factor in that Congress is dysfunctional as opposed to take as a given how it should work when a judge is thinking about severability and the consequences of failing to sever, for example?
Erin Hawley: I guess as sort of a high-level, principled matter, I’d argue that it shouldn’t matter, that the judicial role shouldn’t be dependent upon how well Congress is participating in its own constitutionally given role. So just because Congress doesn’t do anything, I think that’s the same argument that’s made in favor of allowing administrative agencies to have a really broad brush in the sorts of regulations that they issue and the sorts of regulations that they get deference to.
So the argument is Congress isn’t capable of doing it, therefore, we should let the agencies. So I guess my view, even though certainly there’s a lot of dysfunction, is that that doesn’t itself change the Article III role of the judiciary.
Prof. William Baude: I think I agree. I think what it does is it just makes the downsides of formalism more apparent. I think there’s something in there still worth it. But it’s the same problem with textualism. It’s tempting to defend all the absurd results in textualism by saying, “Well, don’t worry. If it’s an absurd result, obviously Congress will fix it.” And then we learn sometimes that’s not true.
That doesn’t make textualism false. That doesn’t mean courts should fix absurd results. But it does mean that you have to swallow that, yes, sometimes there will be an absurd result, and nobody will fix it. And that’s because we have a dysfunctional Congress, and it’s not our fault.
And I think now the courts are being given these incomplete, rickety statutes that don’t totally address the problems we wish they addressed. And they have two choices. They can wish or pretend we have a better Congress than we do, and go back to them and say, “Your term paper’s not finished. Do a better job.” Or they can just do their best to apply whatever we’ve got, even if it’s kind of a hash.
Megan Brown: We do know Congress is not oblivious to judicial doctrines. They’re hip to severability. They write statutes sometimes with an eye towards it. Sometimes there’s strategy there where they’re going to kick something to the courts and cross their fingers and hope it’s fixed or ignored.
But how should judges -- how do you guys think judges should approach severability and non-severability clauses? That’s something that a couple of you alluded to. There have been times in private practice where I wished there was a severability clause or a non-severability clause, depending on what outcome we wanted. But how should judges think about that, and what unique problems or opportunities do they present?
Erin Hawley: I’m with Will on this one. If the whole point of severability is to determine what it is that Congress enacted, then when they tell you what they want to happen, then it seems like the judiciary should follow that. So it seems like both a principle of textualism, and then also consistent with Article III and Article I powers.
Prof. William Baude: Yeah. I think they should approach them with great relief. Here’s this hard problem, and now Congress has solved it for us. The downsides, as far as I can tell, are that Congress does not actually do a very good job writing severability or inseverability clauses. So severability clauses are much more common than inseverability clauses. Congress almost never does anything other than say, “Oh, yeah, sure, the whole statute’s severable,” which is already kind of the default rule anyway, so it’s not a super useful instruction.
And then the severability clauses don’t usually answer the questions courts actually have to resolve, like, okay, suppose that various provisions of this agency are severable. Which ones do you want to go if we have to get rid of one but not all? And it would be great if Congress would get hip to that problem and say, “When in doubt, the enforcement authority is the most important thing. We don’t care so much about the removal restrictions.” Or the opposite, and say, “If this guy can’t be insulated from political pressure, we don’t want him at all.” Those are the basic, topical questions that courts could really use guidance on, and there’s zero chance they’ll get it.
Prof. Josh Blackman: I’ll say a few words about inseverability clauses, Obamacare. During the 2012 litigation, the Obama administration argued that the findings were an inseverability clause. Now, the same lawyers say, “No, never mind. They’re not really inseverability clauses anymore.” So I think Erin and Will are on point. Even when Congress drafts them, they’re not always very good. But I think inseverability clauses are quite rare.
I’ll direct your attention to a state law on inseverability which is involving Texas, the Texas fetal heartbeat law. If you want to see the most intricate severability clause ever, read the Texas fetal heartbeat law. It’s like five pages long, and they go through every permutation of possible events. It’s written in a brilliant fashion. I can’t even describe it, but just read it. It’s fantastic. And eventually, some court will have to consider it, and I don’t see how they can do anything but the most narrow thing possible. It tries to take every possible pain to limit damage. So maybe Congress can take some lessons from Texas.
Prof. Kevin Walsh: A couple observations on these clauses. I think the right way to approach them really does depend on the default because that’s why I hesitate to attribute too much significance to a severability clause because what happens in the more common case when there’s neither? And then if the idea is, look, this ruling displaces that aspect of the law, and that’s that. We don’t need anymore clauses. We’re kind of done. We don’t say, okay, what should we do with everything else? We’re just finished. Then we don’t need a severability clause.
And then the thing is, what about an inseverability clause? Josh raised the findings in the Affordable Care Act, and we have a question about the findings as well as in our Q&A. And that’s the thing, is what does an inseverability clause look like? And is it -- if severability is about contingency legislation, sort of fallback legislation, in the event that this thing happens where this thing is a judicial finding by a court of competent jurisdiction, a final court, whatever, you’ve got to figure out what your trigger is. But if this thing happens, then the law shall be Y instead of X. That is a classic inseverability clause. A finding that says, look, we really, really need X in order to get Y, that doesn’t sound like an inseverability clause if we’re limiting severability to fallback law.
Now, the reason that this classification matters, or among the reasons it can matter, is questions of prospectivity and retroactivity. If the law was X until this thing happened, and then it became Y, well, that matters for everyone who is subject to X and prospectively subject to Y. If the law, though, was always Y because X was always unconstitutional, well then, what about people who have done things that are subject to liability under that new law because it turns out that new law was the law all along?
And this brings us back then to Josh’s point about Justice Thomas’s opinion where Justice Thomas said, “Well, if this law is unconstitutional, then it was never the law.” So maybe, maybe, that depends if the unconstitutionality inheres in the law itself or in some of its applications.
A lot of times when we say a provision is unconstitutional, that’s shorthand for saying it may never be validly enforced consistent with the Constitution. And so we want to know is this constitutional test by which something is invalid, is it an existence condition for the law, or is it an application condition? Now, situations where it’s unconstitutional in all its applications like the structural provision, we may say, hey, there’s no big difference there. But something like the unconstitutional application of a state longarm statute or the unconstitutional application of a certain search technique that’s authorized pursuant to some policy or something like that.
So we want to be careful and think, as Josh said, when Justice Thomas writes, we want to think carefully about what he says. That’s something I want to think more carefully about before saying, yeah, I definitely agree with that because a lot of times, what we mean by an unconstitutional provision means an unconstitutional application or set of applications rather than the provision.
Prof. William Baude: We can take a little bit of wisdom from the John Marshall era too. Erin mentioned the canon of constitutional avoidance. Back in the day, the courts didn’t really distinguish as much between severability problems, constitutional avoidance problems, and judicial review generally. So they would commonly have a broadly worded statute that would be unconstitutional if taken literally in some applications. And they would just say, “Well, this statute can’t possibly authorize thing X because thing X would because unconstitutional.” So they would have a broadly written criminal law, and they would just say, “Well, look, the law can’t be applied to do X where X would be unconstitutional.”
And they wouldn’t really clearly spell out, where now we would say it matters a lot. Are they finding the statute unconstitutional and unsevering the applications, or are they saying that the statute will be interpreted under the canon of constitutional avoidance not to be unconstitutional, in which case it has to be ambiguous? They didn’t do -- they just said, “In this case, we can’t make the statute do X because X would be unconstitutional,” and they didn’t have this modern machinery.
That’s part of where I think Kevin is coming from as well in saying maybe courts shouldn’t even be asking these kinds of severability questions. They should just be asking can we do X or not?
Prof. Kevin Walsh: If I could just jump right in real quick on the Marshall stuff, so take a case that every one was once familiar with, Gibbons v. Ogden. As we know, that was a preemption decision, ultimately. That’s what we call it. But if you think about the logic of that opinion, Daniel Webster has this great windup, and he tried to take credit for something else, but his big argument was that the New York monopoly on steamboats—everyone remembers this—it was no good because the power to regulate commerce is exclusive. That was his big thing.
And then Marshall says, “Well, we’re not sure that’s wrong. In fact, we think there’s a lot of force to that. But we don’t have to decide because there’s an actual conflict between the license holder under this federal coasting law in this case.” So that would be clearly an example of as applied adjudication where the person -- so a lot of times, even though they don’t have the categories that we have right now, they don’t say facial versus as applied, we can often look at their reasoning and say, yeah, they had one test that would make this totally bad and one that would be just in this application. So in some ways, we have new vocabulary and some new concepts, but some of these problems are perennial.
Megan Brown: Yeah, the facial versus as applied rabbit hole, as I recall, can get a little heady, so I’m going to leave that to you guys, although there is some appeal to saying severability should only be applied in maybe a narrower set of challenges where you’re looking to really -- I don't know if there’s an overlap here with national injunctions, and we can go down that doctrinal rabbit hole as well, but super interesting.
There is a question in the chat that actually is the flip side of a question I was going to ask in a few moments. The question came in, “Should federal courts apply the same severability principles in challenges to state statutes as when they’re considering the viability and validity of federal statutes?” I was going to ask a slightly different permutation on the state question here, but let’s go with the question in the chat. Is there a different set of equities, concerns, respectfulness that should affect severability when a federal court is looking at a state statute?
Prof. Josh Blackman: I don't know. I mentioned the Texas fetal heartbeat statute, which, again, relies primarily on federal decisions. I haven’t given much thought to whether there should be different standards. I don't know. Will, I think I interrupted you. I’m sorry. Did you have a thought?
Prof. William Baude: Well, yes. There is a general literature and dispute about when federal courts are interpreting state statutes in general, to what extent should they use state interpretive principles. And under the logic of cases like Erie, they probably should, but in practice they don’t because they learned statutory interpretation in law school and aren’t going to go relearn it for every new state they confront.
I think the right answer would be the judicial power doesn’t change based on what courts are doing. So courts still only have the power to apply the law and then to not apply law that they can’t legally apply, so the effect of presumption of severability would stay the same. But the possible fallback law could change a lot. So we’re used to -- at the federal level, we know there’s no federal common law, so there’s no source of federal common law fallback authority when we look for state severability clauses.
A lot of states do have legislative fallback provisions of severability and they could have common law fallback law on severability, so I think at that stage when the federal court is asking, “Okay, this provision can’t be applied. Is there any sort of fallback law?”, there could be state fallback law. And that’ll be hard for them, and they might have to certify it or otherwise deal with it.
They should not do what the court did in Hellerstedt where they said, “We refuse to apply a state severability clause because that would deprive plaintiffs of their constitutional right to bring a facial challenge,” which is confused.
Megan Brown: Very good. I want to talk about litigating severability. You mentioned earlier -- I think it was Josh who was talking about congressional incentives with respect to severability and inseverability clauses, and if they -- maybe in an ideal world, they would tell judges what are the most important pieces of their legislation and what should hit the cutting room floor if they have a problem, and what’s really, really critical, so take down the whole statute.
But litigants informing their cases also have to grapple with severability. The stakes are serious. You don’t want to necessarily tell the judge that like, “Hey, we think these parts of the statute we’re challenging are actually okay, so save those.”
I was curious for your reactions to DOJ’s submission in February this year in California v. Texas that reversed its position on severability. What do you think the Court did and should have made of that? They didn’t end up grappling with that question, but in terms of this strategy, how much does the severability discussion -- when we challenged a state lawsuit, we plead severability at the outset because we thought we had that burden in that court, but curious for your thoughts on the strategy here, and in particular, the DOJ reversal of position, but any other aspects of litigation strategy for those of you who’ve litigated these cases or watched them be litigated.
Prof. Josh Blackman: I think that’s my question. Look, I think that the DOJ position was not as radical as the press made it seem. They weren’t calling on the entire statute to go. They were simply following Thomas’s lead in Murphy. What they didn’t know and what I didn’t know was that Thomas only applied that at the remedial phase, not the standing phase. In other words, you have severability through standing but not standing through severability. You can go backwards but not forwards. And I think that was the issue DOJ made.
The Biden decision to flip it was not surprising. I suspect that there was a lot of pressure on them to do that. But ultimately, the Court said, “We don’t care because it’s waived,” and that was gone. But this will arise in other situations that are not Obamacare, that are not contentious, and I think some judge somewhere may decide to pick up on it, notwithstanding the Clarence Thomas footnote saying this is not a real thing.
Megan Brown: Anyone else? Related to that, then, private litigants crave predictability. Not everyone is just thinking very important constitutional principles here. So putting aside hotly political cases, in your view, how should litigants -- or should litigants think favorably about severability in order to preserve their regulatory regimes? From regulated entities, you might agree that the method of appointing commissioners is unconstitutional, but after ten years of living under a regime, you might not want that regime to go away. Any thoughts on how litigants should be thinking about use of severability?
Prof. Kevin Walsh: A couple of thoughts here. One is don’t rely on inseverability for some of the reasons that Josh mentioned. So make sure that you can say -- for the things that you want to go, make sure you can say how they’ve hurt you, that the thing that you say is unlawful, not what follows from it. And there’s a certain logic to no standing through inseverability, which is that it’s the judicial power to say what the law is, not what the law would be after they say what the law is as to something over there.
The second thing, though, is apart from the pleading, and we see this in Collins v. Yellen. So this is the case involving the Federal Housing Finance Authority and unwinding a sort of deal that the government essentially made with itself that hurt Fannie Mae and Freddie Mack. Now, the deal, apparently, it was called the third amendment. The fourth amendment is now there. So they’re not worried prospectively.
But they remanded, the Supreme Court did, to say, “Look, as a matter of law, you’re not entitled to unwinding this deal because this acting director initiated it. But we’re going to let you try to make a case as to how the carrying out of the payments and other things in accordance with this deal from the acting director may have been affected by the acting director’s perception of not being subject to presidential removal at will.” So it’s going to be this incredibly fact intensive or, according to Justice Kagan, it’s already been decided because presidential authority was interwoven throughout.
But the point is that at least after this current term, when you’re saying that you’re affected by a provision that is unconstitutional that has not been directly applied to you but might structure the agency, say, that is doing something to you, try and build your case and think about factually how you would show that that particular feature affected you in fact. So unless the person was unconstitutionally appointed or the board was unconstitutionally appointed, in which case you’re going to get a do-over in front of a new group -- that’s a case called Lucia. Unless they’re unconstitutionally appointed, you may end up having to do this fact intensive thing.
And so from the very beginning of the case, you want to think, well, what if we win, but only this much? How can we show that there was a factual connection? And that may frame questions you ask and things you highlight from the very beginning.
Prof. William Baude: One other thought is that it may be worth getting out in front of it. These severability question seem to depend in part on how the case that the Court gets before it is framed. So if the Court gets a case where the victim is a victim of enforcement authority, they’ll look at it through that lens, and in a way they look at it differently if it’s a person who’s been fired, and in a way they look at it differently if it’s a person who has a challenge to some other part of the statute.
Or in Barr, which we talked about briefly, it was a declaratory judgement by some entities who wanted to engage in robocalls. If they had brought this as a defense in a criminal action, it might have looked a little different because it’s even harder to say, well, we’re going to punish you because even though the statute is unconstitutional, we’ve decided to also punish some other people as well. So thinking through the exact best posture for the Court to take this case may be especially important in strategizing how you want it to go.
Megan Brown: Erin or Josh, anything on that? We do have some questions in the chat about Barr. And I love that people are so interested in the robocalling case. But a couple different ones, and I’m going to throw them to Will. I’m not going to read them to you, but the first one is kind of about prospective versus retrospective, and how that works when you’re severing, and what would happen to people who have maybe conduct that was illegal under or permitted under, perhaps, the prior version of the statute before you’ve engaged in the severability analysis.
Prof. William Baude: Yeah, this is great. In Barr when the Court concludes that they’re going to disregard the exception, and they’re going to now apply a flat robocall ban, the plurality opinion by Justice Kavanaugh does recognize this is going to be especially awkward for people who are collecting government back debt via robocalls until the Supreme Court decision, who, as the consequences of a First Amendment lawsuit, have suddenly found their speech criminalized, which is a little ironic.
So he says in a footnote, well, we’re not going to do that. For reasons that the Court doesn’t explain, we’re confident this will not be applied retroactively, and indeed, people will have until the date of the final entry of judgement in this case before they can be held liable, so there’s no retroactive liability.
The thing is, it’s not at all clear where the Court got that. The Court actually spent decades experimenting with this problem of when it decides cases, are its decisions retroactive, or should it carve out exceptions for people who acted before the case was decided? And it was a mess, and they eventually said no, we can’t really do this kind of prospectivity kind of thing because it’s a form of judicial lawmaking, and also, it leads to all sorts of weird line drawing problems. And the footnote doesn’t really explain where any of this comes from.
And in a recent district court opinion decided by Third Circuit Judge Stephanos Bibas sitting, I guess, by designation on the district court, he concluded that the plurality was wrong and that actually, there was retroactive liability because it’s just a plurality opinion, so it’s not binding, and that there were no cases that supported the majority’s own conclusion that its decision or the plurality’s decision, that it shouldn’t apply retroactively. I’ve got to imagine that will go back to the Supreme Court, and they may well try to come up with some way out of it. But this does thrust into a new world.
So right now, there are also a lot of lawsuits about retroactivity in the union context as all the public sector unions that were collecting agency fees until Janus suddenly realized that they could be held liable for huge sums of money. And the lower courts have been struggling to find ways to get the unions out of liability, and it’s not clear they have a legal basis to do that, either. So I do think we have a day a reckoning for is there some retroactivity doctrine the Court’s going to have to invent.
Megan Brown: Do you think that would be broader than related to severability? I feel like now we’re sort of stacking first, second, third, fourth order problems on top of each other.
Prof. William Baude: Yeah, I think in some ways it is a broader problem. And that’s the scary thing about severability is in an attempt to solve the severability problem, the Court wandered into an even bigger problem, potentially. What lower courts have done is create a kind of quasi qualified immunity doctrine called the good faith doctrine that’s like qualified immunity but weaker for people who acted in reliance on decisions that have since been overturned. This is all the questions we ask about qualified immunity, like where does this come from? How do we decide what counts as good faith? And there are precedents that suggest how courts should do that. So it may get even more complicated.
Prof. Kevin Walsh: The prospectivity/retroactivity thing, and there’s another question about underinclusive laws that we can open up into. This is why I think that if we understand severability as fallback law that is not judicially created but judicially activated such that the law actually changes not through the judicial decision but as a result of it, and result of it followed by Congress’s directive that this is what we would have wanted.
And, by the way, if the First Amendment test in Barr was one that says, yeah, this may not be applied in any circumstances because it’s a content based restriction on speech, normally we understand those as problems with the rules rather than the application. But if we don’t think it goes to the very existence, in other words, once Congress said there shall be an exception for robocallers collecting government back debts, that became the law. And then it stopped being the law as a result of severability doctrine, which itself is a contingency, then it didn’t stop being the law contra, say, Judge Bibas until the trigger was pulled by the judges in Barr. Now, that is a bunch of epicycles, but it is worth preserving the idea that judges find the law and don’t make it. So it is one way of saving that.
Now, the thing that’s weird about Barr is mostly as a matter of First Amendment law because as one of the questions points out, there are other cases that could have been solved in a similar fashion. So we have one set of speech rules, and then we make an exception for somebody else. Or the billboards where on premises versus off premises is a good one. There’s others that are throughout speech law. And normally, just as a matter of First Amendment law, the person who shows that they are being subject to a content-based or viewpoint-based law that fails strict scrutiny, usually they win.
And if you go back to the cases that generated this back in the ’70s, this is how it works. So Mosley is a case. Another case is called Grayned v. Rockford where you had a law that said no protests outside of schools—I’m simplifying—except for peaceful labor demonstrations. It turns out that that’s no good because of the exception. And they said these people who were prosecuted under this ordinance, even though they weren’t engaged in peaceful labor demonstrations, hey, they were subject to an unconstitutional law. We see, by the way, that they’ve changed the law and fixed it after they prosecute these people. That doesn’t change anything because they were subject to an unconstitutional law.
So Barr, we might think of it as a severability issue, but we might just say if you had applied your normal First Amendment doctrine, this is how it should have come out, which, by the way, is important when you do the vote counting in Barr, the First Amendment analysis also does not get a Court. So four justices, Kavanaugh, Alito, Roberts, Thomas say strict scrutiny, and Gorsuch also says strict scrutiny but for other reasons. And that’s because as a matter of his constitutional test, Gorsuch would have said you can’t every anyhow. So don’t blame severability if it might be a problem with inconsistency with prior substantive law.
Megan Brown: Any reactions to that? Anyone want to follow up?
Prof. William Baude: Well, I will say I do think Kevin is right, and this is another substantive non-severability topic this brings in is in some ways these severability cases like Barr highlight some of the weird things about First Amendment doctrine in the first place. I love free speech, and I’m always happy to see it protected, but the doctrine has become somewhat obsessively focused on formal questions of neutrality, like are you being treated exactly like other people, when neutrality is really just a proxy for the underlying question we really care about, which is like is the government suppressing speech without adequate justification?
And as the doctrine has become more formalistic and more obsessed with neutrality, it’s part of what thrusts us into these weird over-inclusive/under-inclusive things because it is a little weird to say it was totally fine and it didn’t violate your free speech rights at all to ban robocalls for 20 years, even though nobody could do it, not a free speech problem at all, but now because a few debt collectors get to do robocalls after all, suddenly your free speech rights are violated.
I kind of get it as a matter of doctrine. I kind of get how we say, well, look, if the government’s willing to make an exception for you, it should make an exception for other people, etc., etc. But just stepping back in terms of what’s happening to speech, it’s a little weird that we say it’s totally fine to suppress massive amounts of speech as long as you suppress it really broadly, and then the one exception creates this whole thing. So that’s the nicest thing I’ve ever said about Justice Breyer.
Megan Brown: Well, the First Amendment issues in the robocalling context are super interesting and the product of decades of litigation, some of which I think would come out differently if it were being done today. So that’s maybe a teleforum for another time.
I was going to take us in the direction of administrative agencies and regulatory uses of severability. Are there any other questions in the chat that someone wants to jump on? We did get one question that I think is a little sort of big picture, which is to take us back to Blackman’s Affordable Care Act odyssey, someone asked, “Do you see any possibility that the law would ever be -- will eventually be ruled unconstitutional in the future case?” Josh, do you have a view on that? I don’t want to ask you to give up the ghost on that, but we’re really in the final gasps here for these cases.
Prof. Josh Blackman: The Obamacare odyssey, the Obamacare trilogy, whatever you want to call it, we ain’t over. The Court did not resolve the issue. At some point, there’ll be another case. My best guest is a qui tam action. Someone somewhere in the Fifth Circuit will be accused of fraud under the ACA. They will raise as a defense, “You can’t charge me with fraud. This entire statute is unconstitutional.” In that affirmative posture, there is no Article III issue. It’s a case brought by the government, and you can raise whatever defense you want.
Now, the mandate doesn’t operate on the individual in the same sense they did in the ACA litigation. But a court, I think, would have to adjudicate is this in fact inseverable because there’s no standing inquiry. The court might find, yes, the mandate’s unconstitutional, but everything else is fine. And I think under Fifth Circuit precedent, that’s probably the result you’d have to reach.
But this will be litigated. I wish this were over. I wish the Court just killed this case like putting a wounded horse out of its misery, just save me the hassle of having to write about it and fight my friends about it another three years. But unfortunately, the Court doesn’t consider my wellbeing, and they write these sorts of decisions. But unfortunately, we’re stuck with Obamacare for the foreseeable future.
Megan Brown: I did notice there was a cert grant last week on an underlying question embedded in it, so it certainly, if the questioner was asking is the Affordable Care Act going to continue to be a font of litigation, I think the answer is a resounding yes.
Prof. Josh Blackman: Yes.
Megan Brown: Anyone want to comment on stuff before I take us to the regulatory space because there are some interesting little nuggets and nooks and crannies there, but I don’t want to truncate a conversation.
Prof. Kevin Walsh: Just on that one point on the Affordable Care Act or inseverability generally, at least on an orthodox understanding of judicial power as tied to remedies and res judicata or judgement power and reasons for judgement, only the Supreme Court can really pull off inseverability. No district court -- they can write the words, but no district court, no circuit court can destroy the Affordable Care Act in a way that would make it just not law for anybody else.
Only the Supreme Court can do that just because of the way our system is structured, which is weird and makes you think that maybe no court has that power just by implication, that the courts really are casing controversy and then reasons that follow from those. So just a thought. Maybe the horse is -- there’s no oxygen on the planet we sent that horse.
Megan Brown: Moving to the regulatory space, severability comes up in front of agencies occasionally when they want to use or anticipate litigation and challenges. So I’m curious if you guys have thoughts on how administrative agencies should think about severability.
It’s a little bit of a strange one, I think, because it’s not exactly the same kind of posture. The equities are a little different. But if you’re advising, say, the Federal Trade Commission, or another frequent flier that does inseverability moves, EPA, what should they be taking into account? We’ve seen this litigated in a few different contexts, and I think the administrative conference of the U.S. has looked at some of these issues, but what’s your reaction to agencies trying to navigate or use severability to maybe protect some of their rulemakings, for example?
Prof. Kevin Walsh: Maybe I’ll just kick us off to say that severability was imported into constitutional law from contract law. So this thing about what do you do when you have this big thing, a part of which may be no good, contract law, it makes sense for contract law reasons. Statutes may make sense.
For regulations, I guess, in the first instance, it might be a function of the standard of review. So the APA 706 says set aside unlawful agency action. So if the agency action is kind of a rulemaking and that’s what gets set aside rather than an enforcement or something like that, I would say whatever an agency tries to write in is always going to be subject to whatever statutes govern it and govern, then, the actions by which they’re challenged. So I’m not sure that it just transposes.
That said, and it’s not just the organic statute that might matter or the APA that might matter. Take something like the Religious Freedom Restoration Act which requires the consideration of any burdens that a regulatory action might make on the exercise of religion and says you actually have to carve those out or figure out some rule unless you give us a reason why you can’t. And so I’d say there’s a lot more constraints just as a matter of statute on what agencies can do.
But to the extent that you have a rule that depends on what the agency wants, then sure, go ahead and say we don’t want our thing to die if part of it dies. And if that’s consistent with all the statutes, you’ll be fine. But I think it’s slightly different set of problems because there’s a different set of constraints.
Prof. William Baude: Yeah, I think I agree with Kevin. I think the APA imposes two major changes in terms of how courts treat agencies versus how they treat Congress. So one is the APA makes courts think they are more entitled to not believe agencies when they say something. So like the agency says, look, if part of this rule is invalid, we still want the whole rule. Courts are much more likely to say, yeah, you said that, but we’ll just give it back to you and let you decide whether you really mean it. These attempts to enact fallback positions at agencies don’t always hold up because it doesn’t necessarily comply with the court’s view of recent decision making.
The other is that the APA gives an avenue for the courts to do what we were talking about earlier, to just give things back. The APA creates a greased path to say, all right, I’m giving this back to the agency, and especially under these innovative remedial tools. I think there are other telefora about remanding the rules to agency without vacating it, which may be not actually allowed, but courts do it anyway. But it makes it feel easier for the court to say you just need to take another look at this one.
So I think on the agency side, there’s just less value in adapting severability and inseverability clauses. Maybe there should be. I’m not sure courts should be throwing those away. But of course, we ask them to review them seriously, and they’re more likely to just call the agency later and ask formally what they should do.
Maybe that means we need an APA for Congress. Maybe that means what we really need is a statute like that, just like we made agencies more functional, arguably, with the APA. Maybe we could make Congress more functional with a legislative procedure act, but that’s another day.
Megan Brown: I like it. I like that. So we’re running short on time. I did want to throw it open to ask each of you to weigh in on what you see coming next. Are there particular cases that you think our audience should be watching for now that they are all very passionate about severability and they want to see if Josh is right on where Thomas is headed, for example. What are you guys watching for, and what would you say that our listeners/audience, what cases should they be watching for, and what do you think in the next couple of years are we going to see crystalize or continue to be disputed? I’ll start picking. Let’s go with Erin.
Erin Hawley: Great. Thanks, Megan. So I think that I’m personally very interested in Josh’s standing by inseverability argument. And I’m fairly skeptical to it. Sorry, Josh.
Prof. Josh Blackman: By the way, Erin was my fed course professor many years ago, so this is a bit of a treat.
Megan Brown: That’s impossible. [Laughter]
Prof. Josh Blackman: She had just finished clerking, I think, and she came to George Mason for a semester. So this is a bit of a treat for me.
Erin Hawley: Yeah, it’s really fun. So I love the novelty of it, and I think it’s super innovative. So it would definitely get an A+ on an exam.
But as far as -- I think is share Kevin’s skepticism as is this really part of the judicial power? If we’re looking at a different provision, is it actually harm? Does it cause harm? Is it remediable? So I do think we will see some of that raised in various cases in the lower courts, and it will be fascinating to see what the lower courts do with that, so very interested in that. I don’t think ultimately it will prove successful, but very interesting.
Megan Brown: All right, who’s next on my prediction wheel? Let’s go with Kevin.
Prof. Kevin Walsh: Yeah. At least I might have scurried on the next one over, but that’s unreliable. So I don’t have a case for you, but I do have a kind of general thing to watch for. So Will talked about First Amendment law and the divide -- Reed v. Town of Gilbert kind of makes everything turn on form in some ways.
And I think if we ask why now, why is severability -- it’s not because they read my law review article. Those things show up in opinions if they’re useful to people writing them, but it’s not like they’re not -- so we need an explanation internal in some ways to the way that law is being argued now that makes severability live.
Now, one reason might be that they very rarely find anything inseverable. And Murphy v. NCAA was one of those rare cases. I do think that at least some members of the joint dissent, in particular Justice Thomas, kind of stared into the abyss a little bit in NFIB v. Sebelius. And my own speculation is that the prospect of inseverability contributed to the Chief Justice’s second look or third look to kind of like are we going to take down this whole thing based on supposition about congressional intent when it regulates 17 percent of the economy, affects Native American reservations, and breastfeeding rooms, and menus at fast food restaurants, and everything that was in there, are we sure that this is how law works?
I think that that sort of planted a seed back then, but there wasn’t an occasion as much for that to throw up some shoots. And Murphy v. NCAA perhaps had something to do with that to say -- I’m not sure -- I’m pretty sure that -- well, I think it was wrong. But it made them think why are we doing severability?
But another reason is that formal tests that go after an entire structure or an entire set of applications, they result in potentially broad sets of unconstitutionality. And we might think -- you had asked, Megan, if this gives a pass to Congress. We might think of severability doctrine as the justices giving themselves a little bit of a pass.
Are we sure that the price of getting rid of a restriction on presidential removal power -- if the price were taking down the entire PCAOB, would they have reached that? Same with the FHFA. If there were hundreds of millions of dollars that had to be given back because that -- so it might be that what we’re seeing with severability is a kind of remedial equilibration where they’re kind of -- by reducing the consequences as a practical matter of holding of unconstitutionality, they’re making it easier to find things unconstitutional. So we see in areas where this court is more aggressive than past courts First Amendment separation of powers, that’s where it’s coming up.
So then the thing to watch for is what happens with those who are against these more formal tests because so far, if that’s part of what’s been going on, they’ve been playing along. That is, they’ve been saying, well, I disagree with the separation of powers analysis, but I agree that it’s severable. I disagree with this, but I agree -- okay, send it back. And so there’s one move to make which is to -- now, that’s a sort of more cynical approach, but I do think these things fit together. And so one thing might be to just watch this relationship as it develops.
And then the second is I think it’s a very interesting few years as this particular issue becomes the one where some of the newer justices and then some of the newer ideas of some of the older justices, not in chronological term, but in court term, where they mix and match. And I think there’s going -- it’s just a fascinating time to be paying attention to these things. So maybe set a WestClip or something, or Lexis, or whatever the equivalent is, for severability and enjoy the ride.
Megan Brown: Awesome. Can we get some quick, final thoughts from Josh and Will before Nick gives us the yank?
Prof. William Baude: My prediction is watch out for these issues to spill over into non-severability topics like retroactivity and also the de facto officer doctrine which came up recently in the Portico bankruptcy case, although it’s not litigated all the way back, presents a lot of the same kinds of dilemmas. So you’ll see these opinions cited in those.
Prof. Josh Blackman: I’ll make one final point. Big business that thinks they’ll kill the CFPB or kill Amendment 3 have other things to worry about. The court won’t do anything. Free Enterprise Fund, bupkis. Seila Law, bupkis. Arthrex, bupkis. Collins, bupkis. You guys get bupkis. So if your clients at Wiley Rein law firm, if you look to the Appointments Clause and severability, you’ll get nothing for it but a lot of legal fees you’ll never get back.
Megan Brown: Well, on that depressing note, thank you, Professor Blackman.
Prof. Josh Blackman: You’re welcome. [Laughter]
Megan Brown: Thanks to our audience for dialing in. Thanks to all four of you for a great conversation. Erin, Will, Josh, and Kevin, that was great. You made me look good, so thank you. And thanks, Nick. And I think with that, we’re done.
Nick Marr: Yeah. Thanks very much. Megan covered it. I just get to offer the official Federalist Society thanks. Thanks very much for your valuable time and your valuable expertise. Thanks to our audience for dialing in. Keep an eye on your emails and our website for announcements about upcoming events, not quite like this one, but registration information for future events. So thank you all for joining us today. Until that next event, we are adjourned.
Dean Reuter: Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s Practice Groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.