Realism, severability, and inertia

There was a fair bit of discussion at the severability argument about injecting a dose of realism into the Court’s severability doctrine, taking into account the difficulty of overcoming Congressional inertia. 

Any decision finding that any part of a statute is unconstitutional means that the law will not operate as Congress intended.  And no matter what decision the Court makes on severability, Congress has the power to correct, either by repealing provisions the Court leaves standing or re-enacting provisions that the Court refuses to sever from the unconstitutional provision.  So, in a sense, what we are really talking about is the establishment of a default rule, that is, what happens in the absence of action by Congress to fix the statute after a judicial decision finding part of the statute unconstitiutional. 

But that default rule matters a lot because of Congressional inertia.  So if the Court wants to move in the direction of realistically considering Congressional inertia, perhaps it should be considering what decision on severability is most likely to elicit a response that could overcome Congressional inertia. Viewed from that perspective, wouldn’t the position of the amicus – severing the individual mandate from the rest of the statute so that everything survives except the mandate – fit the bill?  Insurers would presumably kick and squawk, but aren’t they precisely the ones in the best position to overcome Congressional inertia?

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3 Responses

  1. Brett Bellmore says:

    But why do we presume that Congressional inertia is something that needs to be “overcome” rather than something that needs to be “reenforced”? Because Congress is passing so little legislation?

    There’s a value judgement there, that many would contest.

  2. Edward Hartnett says:

    It has nothing to do with Congress passing too little legislation. The argument is:

    1) If a court finds an Act of Congress to have a constitutional flaw, anything the court does will leave the resulting state of the law in a different condition than Congress intended;

    2) Congress, not the courts, has the ultimate authority to choose which state of the law should result after part of a statute is found unconstitutional.

    3) While Congress has the authority to choose which state of the law should result after part of a statute is found unconstitutional, inertia may prevent it from doing so.

    4) IF (and this is a big IF) a court thinks that realism about Congressional inertia is relevant to its decision about which state of the law to select on an interim basis until Congress exercises its authority, then perhaps it should pick that state of the law more likely to get Congress to exercise its authority.

    It seems to me that the closest thing to a value judgment is in step 2 — although I think it is a uncontroversial statement of constitutional law. Who would contest step 2?

  3. Brett Bellmore says:

    5) Whereas partially striking down the law creates a new state of the law never intended by Congress, which may be unalterable due to interests who could never have attained it legislatively still being able to exercise a veto, entirely striking it down merely restores the status quo ante, which if Congress was able to change once, they can presumably change again.