Severability

Severability is a question that comes up regularly in criminal cases. If one provision of a law is unconstitutional, should the whole law be declared void? In my view, the correct answer is nearly always no. Some years back, the New York Court of Appeals effectively abolished the death penalty in that state with a non-severability holding that, in my view, was clearly wrong.

Today’s Supreme Court arguments in the Obamacare cases, Texas v. California, No. 19-1019 and California v. Texas, No. 19-840, have nothing to do with criminal law, but they may produce an important precedent on severability.

From today’s argument, about an hour in:

Chief Justice Roberts: On the severance question, I think it’s hard to argue that Congress intended the entire act to fall with the mandate if it were struck down when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the act. I think, frankly, that they wanted the courts to do that, but that’s not our job.

I think so, too.

Nowhere in the Constitution are the courts given the power to nullify statutes. What Marbury v. Madison says it that when, in the course of deciding a case, the Constitution points to one result and a statute points to a different result, the court must decide according to the higher law even if that is contrary to the lower law. In another case, where another section of the same statute does not conflict with the Constitution, that law is still the law. Most of the Judiciary Act of 1789, the statute at issue in Marbury, remained intact after that decision. It would have been absurd to argue that the entire federal judiciary would come crashing down because of it.

Sometimes a provision of law has no function other than implementing the provision found to be unconstitutional, so as a matter of statutory interpretation a court may decide that the rest of the law is pointless without the unenforceable portion, and the removal leaves a shell of a law that the legislature would never have enacted or wanted enforced. But that is rare. I don’t think the severability question in this case is even close.

BTW, take the instant transcript on C-SPAN with a grain of salt. No, the Chief Justice did not really cite the Colostomy Clause.