Severability is a doctrine of judicial restraint dating all the way back to the beginnings of judicial review that counsels that a court must try to save, not destroy, a legislative enactment by severing any unconstitutional provisions or applications rather than invalidating the statute as a whole, so long as the remainder is fully operative as law and coheres with the intent of Congress.  As Chief Justice John Marshall observed almost two centuries ago, “[i]f any part of the act be unconstitutional, the provisions of that part may be disregarded while full effect will be given to such as are not repugnant to the Constitution of the United States . . . .” But yesterday morning, during oral argument, a number of the Court’s conservative Justices seemed poised to invoke the doctrine of severability to strike down the entire Affordable Care Act, turning judicial restraint on its head.    

During the argument, Justice Antonin Scalia – long admired by conservatives as a champion of judicial restraint – was the most vocal of the Justices in supporting Paul Clement’s argument that the Court should strike down the entire Affordable Care Act, including hundreds of provisions that no one argues are beyond the constitutional power of Congress and bear no possible relation to the individual mandate.  Throughout the argument, Justice Scalia argued that “if you take the heart of the statute, the statute’s gone,” and hence, if the indivudal mandate falls, so too does the entire Affordable Care Act, even unrelated provisions designed, for example, to provide black lung benefits, health services for Native Americans, and to promote breastfeeding.  Justice Scalia’s argument was based less on applying severability law as developed by the Court – which as Justice Ruth Bader Ginsburg pointed out called for the Court to act as “salvage job” not a “wrecking operation” – but on Justice Scalia’s own intuitions about political process theory.  Scalia suggested that Congress would be better off with a clean slate, even if that meant invalidating a long list of democratically enacted provisions that unquestionably fell within Congress’ constitutional powers, since otherwise, in Scalia’s view, legislative inertia would make it too difficult for Congress to respond to a ruling invalidating the individual mandate.   In Scalia’s hands, severability doctrine requires the court to destroy, not save, statutes, reversing the received wisdom about severability dating all the way back to the Marshall Court.  No wonder Justice Elena Kagan called Scalia’s approach a “revolution in our severability law.” 

Justice Antony Kennedy agreed, to a considerable extent, with Justice Scalia’s argument, suggesting that saving as much of the statute as possible was not an act of judicial restraint.  “We would be exercising the judicial power if one Act was – one provision was stricken and the others remained to impose a risk on insurance companies that Congress never intended. . . .  That, it seems to be can be argued at least to be a more extreme exercise of judicial power than . . . striking the whole.”  Justice Samuel Alito, too, worried about the plight of insurance companies if the Court were to strike the individual mandate and sever the rest (as if it were more important for the Court to preserve the lobbying bargain struck by AHIP than the law passed by Congress) .  Meanwhile, Chief Justice Roberts argued that since the Act serves both the goal of patient protection and affordable care, the conventional severability inquiry, which dictates saving statutes to advance the statute’s basic purpose, breaks down.  Judicial restraint in the hands of the Court’s conservatives facing a statute they do not like means striking down as much as possible, rather than saving statutes that are clearly within Congress’ constitutional power.

To find any Supreme Court cases that support this basic approach to severability, one has to go back, far back to the dark days of the Lochner era, when a narrow majority of the Supreme Court used a cramped understanding of Congress’ Commerce Clause and Tax and Spending powers together with severability doctrine to strike down congressional efforts to end the depression and relieve the human suffering experienced during the Great Depression.    In cases like the Court’s 1936 ruling in Carter v. Carter Coal, which invalidated by a 5-4 vote the New Deal Congress’ effort to regulate the coal industry, the Court seized on severability to destroy, not save, otherwise constitutional statutes that conflicted with the Justices’ laissez-faire preferences.   In language reminiscent of yesterday’s proceedings, the conservatives of the Lochner-era argued that the comprehensive regulatory statutes pushed by FDR and enacted by the New Deal Congress had to fall as a whole; the parts were designed to work together and hence too inter-connected to permit severability of the constitutional provisions.  Since then, the Court has repudiated this basic approach time and again, emphasizing that the guiding principle of severability doctrine is to save and not to destroy.  As Justice Sonia Sotomayor explained during yesterday’s argument, the law’s presumption is strongly in favor of severability because of basic principles of democratic governance that demands that court stay out of the business of lawmaking. 

The Court’s conservatives now find themselves on the edge of a precipice.  If the conservative Justices follow the path of the Lochner-era Court by first second-guessing Congress’ express constitutional powers to regulate interstate commerce, tax, and spend money in the general welfare and second by invoking severability doctrine to strike down the entire Affordable Care Act, what principled justification could they possibly give to their American people for their judicial activism and disregard for our nation’s basic constitutional and democratic structure?    One thing is certain – after Citizens United, the institutional legitimacy of the Supreme Court, not to mention the legacy of John Roberts and Anthony Kennedy is very much on the line.  The whole world is watching, and the question now is whether the conservatives on the Court will heed or break from our established constitutional traditions.