Constitutional Avoidance, Severability, and a New Erie Moment

By Folio, Ryan M. | Harvard Journal of Law & Public Policy, Spring 2019 | Go to article overview

Constitutional Avoidance, Severability, and a New Erie Moment


Folio, Ryan M., Harvard Journal of Law & Public Policy


Suppose that you are a textualist federal judge. In front of you is a federal statute containing a provision that is best read as unconstitutional. You have two options. You can discard the best interpretation and adopt an alternative interpretation that avoids the constitutional problem. Or you can adopt the best interpretation and declare the provision unconstitutional. Then, in order to determine whether you should invalidate the statute in whole or in part, you have to speculate about whether Congress would have enacted the statute without the unconstitutional provision. Which option do you choose?

Federal judges face this choice routinely in our current regime of constitutional adjudication. Those who choose the first option--constitutional avoidance--will sometimes confront charges of having impermissibly "rewritten" the statute through interpretation, which is to say, outside Article I, Section 7's procedures. And those who choose the second option--severability--will have to gaze into a crystal ball in an attempt to determine whether Congress would have passed a version of the statute that, in all likelihood, Congress never considered. They too risk charges of having rewritten the statute.

National Federation of Independent Business v. Sebelius (1) illustrates this dilemma, in which judges must choose between two kinds of rewriting, when judges should not be rewriting at all. There the Supreme Court considered the constitutionality of the Affordable Care Act's (ACA) Individual Mandate and Medicaid Expansion. (2) Chief Justice Roberts conceded that the best reading of the Mandate was that it commanded individuals to purchase insurance. (3) But because that reading would result in a finding of unconstitutionality, he chose to read the Mandate as a tax. (4) In a joint dissent, four Justices accused Chief Justice Roberts of having rewritten the Mandate. (5)

Yet the dissenters' choice to give the ACA its best reading came at a cost. Because the dissenters concluded that the Mandate and Expansion were both unconstitutional, (6) severability doctrine required them to speculate about whether Congress would have enacted the rest of the ACA without those provisions. Severing the Mandate and Expansion, though, risked rewriting the statute, they said. It was a legislative power that the Court could not exercise. (7) The dissenters thus concluded that the most restrained course of action would be to invalidate the ACA entirely. (8)

This Note argues that the Court should repudiate the avoidance and severability doctrines. Both doctrines assume the existence of an unexpressed legislative intent that judges can discover. But the rise and influence of modern textualism have challenged that assumption to such an extent that a significant portion of judges and lawyers are now skeptical of legislative intent. As a result of that skepticism, the doctrines have begun to look different. Namely, they appear to engage courts in the exercise of legislative rather than judicial power, and a judge's quest for legislative intent can appear to mask the expression of policy preferences. The ACA Cases--NFIB and King v. Burwell (9)--suggest that the prevailing judicial approach to addressing the unconstitutionality of statutes creates tension with the common textualist-inspired skepticism among judges and lawyers about legislative intent. That expanding skepticism has the effect of making avoidance and severability appear illegitimate because they seem to be forms of judicial legislation.

Changing theories of law have prompted sweeping doctrinal reform in the past. In Swift v. Tyson, (10) in 1842, the Court held that the Rules of Decision Act did not require federal courts sitting in diversity to apply state court decisions in matters of general common law. (11) Because Justice Story, writing for the Court, conceived of the common law as a transcendental body of law that all judges could discover, he reasoned that the Act authorized federal courts to provide the rule of decision themselves. …

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