Academic journal article The Yale Law Journal

How to Trim a Christmas Tree: Beyond Severability and Inseverability for Omnibus Statutes

Academic journal article The Yale Law Journal

How to Trim a Christmas Tree: Beyond Severability and Inseverability for Omnibus Statutes

Article excerpt

NOTE CONTENTS  INTRODUCTION  I.   OMNIBUS LAWMAKING AND SEVERABILITY      A. An Introduction to Severability Doctrine      B. Problematic Features of Omnibus Lawmaking  II.  THE PEDIGREE OF SEVERABILITY DOCTRINE      A. The Stakes of Determining Severability Doctrine's Source      B. How To Determine the Source of Severability Principles      C. Determining Which Aspects of Severability Doctrine Are         Constitutionally Required         1. The Severability-Default Principle: Locating Severability            Doctrine in Article III Limits on the Judicial Power         2. The Independent-Remainder Principle: Locating Severability            Doctrine in Article I, Section 7's Definition of Statutory            "Law"         3. The Hypothetical-Passage Principle: Locating Severability            Doctrine in Prudential Comity Concerns         4. Distinguishing the Independent-Remainder Principle from the            Hypothetical-Passage Principle  III. THE CONSTITUTIONAL INCOMPATIBILITY OPTION      A. The Need for an Alternative Approach to Severability for         Omnibus Statutes      B. The German Incompatibility Option      C. An American Incompatibility Option         1. How the Incompatibility Option Would Address the Unique            Characteristics of Omnibus Statutes         2. How the Incompatibility Option Would Harmonize with Current            Severability Doctrine         3. When Judges Should Employ the Incompatibility Option  IV.  ANSWERING OBJECTIONS TO THE INCOMPATIBILITY-OPTION APPROACH      A. Objection One: The Constitutionality of Transplanting the         Incompatibility Option into American Law      B. Objection Two: The Problem of Legislative Intransigence      C. Objection Three: The Effects on Vulnerable Individuals      D. Objection Four: The Problem of Uncertainty in the Interim CONCLUSION 

INTRODUCTION

When the Supreme Court decided National Federation of Independent Business v. Sebelius (NFIB) in 2012, (1) the public and the press focused on the Court's merits rulings. (2) Another important aspect of the opinion received relatively little notice. The four joint dissenters--Justices Scalia, Kennedy, Thomas, and Alito--spelled out the remedy they would have chosen had their merits position prevailed: they would have struck down the Affordable Care Act (ACA), that massive legislative project, in its entirety. (3)

The dissenters invoked a novel legal theory to justify this far-reaching remedy. In general, federal courts presume that a freestanding statutory provision, such as the ACA's individual mandate, is severable from the rest of the statute. As the length and complexity of the statute increases, so does the strength of this presumption--the more expansive a statute, the less problematic it should be to excise an unconstitutional provision. The dissenters in NFIB reversed this presumption. According to the dissenters, the ACA was a lengthy statute containing a multitude of provisions unrelated to its core purpose. The dissenters characterized it as a "Christmas tree" law, with "many nongermane ornaments." (4) They reasoned that, without proof that Congress would have enacted these "ornaments" in the absence of the individual mandate, the entire "Christmas tree" had to fall. (5) Under the dissenters' new theory, the unorthodox bargaining process that generates long, complex statutes--so-called "omnibus statutes"-makes provisions in these statutes presumptively inseverable. The length and complexity of a statute weighs against, rather than in favor of, severability.

Although it appears unlikely that the dissenters' "Christmas-tree" approach will gain much traction, (6) the question of how to determine the severability of omnibus bills remains important to resolve. An increasing number of federal statutes follow the pattern of the ACA. (7) Today's Congress tends to pass long, complex statutes that reflect numerous compromises and bargains. Because omnibus statutes do not fall under the purview of a single congressional committee, they are less likely than ordinary statutes to be internally consistent. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.