The Severability Mess
I’m not concerned about Judge O’Connor’s opinion invalidating the Affordable Care Act. Appellate courts exist to correct erroneous trial court rulings. I am concerned, though, about the state of severability doctrine. Do you remember the severability analysis in Marburg v. Madison? The part where Chief Justice Marshall examined whether the rest of the Judiciary Act of 1789 could stand given that the Court was invalidating one part of that Act. Of course you don’t. Because no such analysis was done.
I think that severability should be presumed unless Congress speaks to the contrary. Given that there are many precedents on the other side, though, Congress should legislate in a general way to create this presumption for all statutes going forward.