Invalidating Entire Acts: Marbury and Missouri

As someone who had argued for the Court to follow Judge Sutton’s lead and sever any unconstitutional applications of the individual mandate from the constitutional applications of the individual mandate – thereby rejecting a facial challenge to the individual mandate – it was disappointing to hear the Court taking quite seriously the possibility of refusing to sever anything – thereby concluding that nothing in the entire ACA survives.

I’ve been thinking what such an approach would have meant in the earliest big cases in which the Supreme Court held that Congress had violated the Constitution.

How about Marbury?  There, the Supreme Court concluded that the mandamus provision of section 13 of the Judiciary Act of 1789 violated the Constitution.  Imagine if it had concluded that this constitutional flaw meant that nothing in the Judiciary Act of 1789 survived.  That would mean that the lower federal courts created by that Act would have to close up shop.  It would also mean that the Supreme Court itself would have to do the same, because while the Constitution requires the creation of a Supreme Court, without the Judiciary Act of 1789, there would have been no basis on which to organize one – including such basic matters as how many justices would hold the Court.

But that’s different.  After all, the mandamus provision of section 13 was a relatively minor part of the Judiciary Act of 1789, not the heart of the Act. 

So how about the next big one, Dred Scott.  There, the Supreme Court concluded that section 8 of the Act of March 6, 1820 – the section of the Missouri Compromise that banned slavery north of 36 degrees, 30 minutes — was unconstitutional.  Surely the limit on the spread of slavery was at the heart of the Act, no?    And wouldn’t this be a perfect example, at least for those opposed to the spread of slavery, where half a loaf (a new slave state without the geographic limit on slavery) would be worse than nothing?  Imagine if this meant that the entire Act of March 6, 1820, was unconstitutional: Goodbye State of Missouri.

You may also like...