A Response to Patterico on the Lack of a Severability Clause in Obamacare

Patrick Frey and I are, unsurprisingly, friends, but I do respectfully disagree with a major point in his latest post.

We have been talking here since yesterday about whether, if Congress strikes down the mandate (or any other part of Obamacare), it should simply strike down the offending part, strike down the whole law or strike down only some parts.  And Patrick makes many good arguments for the idea that severing part of a law and saving the is just plain bad policy.  It’s a good post and I recommend reading the whole thing.

But in Patrick’s mind the lack of a severability clause should be determinative of this question.  And I think that’s not right.  He writes:

Here’s my reasoning: first, Congress knows how to put in a severability clause, and as Aaron has noted here on past occasions, these clauses generally appear in most legislation. And it very pointedly did not in the ObamaCare legislation.

And here is the problem: absent a severability provision, when you cut out part of a law, the part that remains is not the law that Congress voted for.

So to Patrick, arguing from a “textualist” perspective (that would be a Scalia-like devotion to plain text) the lack of a severability clause means they did not want it severed.  And there is some support in the law for that notion, including the expression unius rule, which I explain here.

But, first there is a problem with that.  Just as you can say that there is nothing in the law that says it can be severed, there is equally nothing in the law that says it can’t.  So Patrick’s hidden assumption is that the default rule is that unless Congress says it is severable, it is not.  And there are lots of good policy reasons for that.  But I think there is one controlling policy reason for why that should not be the rule.

It has to do with a concept called legislative dialogue.  Now let me confess biases since I am about to quote where the Supreme Court quoted from an old professor of mine.  But I will say this bluntly.  I learned to the concept and decided it was valid when I was an undergrad, years before I knew who the Hon. Guido Calabresi was, let alone had him as a professor.  And I will note that I disagree with almost every other word in the book he wrote it in, A Common Law for the Age of Statutes (1982).  But on this point he is right.

My old professor was quoted by the Supreme Court in the case of Johnson v. Transportation Agency.  In that case they were considering an affirmative action program under Title VII of the Civil Rights Act of 1964.  Previously in United Steelworkers v. Weber, the Supreme Court had said that affirmative action programs were legal under Title VII, and in Johnson the court found that the failure to amend the act was significant (and this is where they quote Calabresi):

JUSTICE SCALIA's dissent faults the fact that we take note of the absence of congressional efforts to amend the statute to nullify Weber. It suggests that congressional inaction cannot be regarded as acquiescence under all circumstances, but then draws from that unexceptional point the conclusion that any reliance on congressional failure to act is necessarily a "canard." Post, at 672. The fact that inaction may not always provide crystalline revelation, however, should not obscure the fact that it may be probative to varying degrees. Weber, for instance, was a widely publicized decision that addressed a prominent issue of public debate. Legislative inattention thus is not a plausible explanation for congressional inaction. Furthermore, Congress not only passed no contrary legislation in the wake of Weber, but not one legislator even proposed a bill to do so. The barriers of the legislative process therefore also seem a poor explanation for failure to act. By contrast, when Congress has been displeased with our interpretation of Title VII, it has not hesitated to amend the statute to tell us so. For instance, when Congress passed the Pregnancy Discrimination Act of 1978, 42 U. S. C. § 2000e(k), "it unambiguously expressed its disapproval of both the holding and the reasoning of the Court in [General Electric Co. v. Gilbert, 429 U. S. 125 (1976)]." Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U. S. 669, 678 (1983). Surely, it is appropriate to find some probative value in such radically different congressional reactions to this Court's interpretations of the same statute.

As one scholar has put it, "When a court says to a legislature: `You (or your predecessor) meant X,' it almost invites the legislature to answer: `We did not.' " G. Calabresi, A Common Law for the Age of Statutes 31-32 (1982). Any belief in the notion of a dialogue between the judiciary and the legislature must acknowledge that on occasion an invitation declined is as significant as one accepted.

The idea is simply this.  If the Supreme Court reads a statute a certain way, and gets it wrong—or simply reads it in a way that the current Congress doesn’t like—you would expect Congress to correct them.  So in Johnson, the Supreme Court found it significant that there hadn’t even been a proposal to change their decision in Weber.  This is indeed why the Supreme Court is much more likely to respect precedent when it comes to the interpretation of statutes than it is with the interpretation of the constitution.  It is relatively easy to change a statute, so if the Supreme Court makes a mistake one can presume that Congress will fix it, but it is hard to change the Constitution so any mistakes the Supreme Court has made in that arena will be hard to undo.

And don’t be distracted by what you might think of as a bad decision in Johnson (upholding an affirmative action program).  It may work against your politics today, but tomorrow it might help.  It’s a neutral rule that is only about following the intent of Congress.

When the Supreme Court interprets a law, they are not just saying “this law means X.”  They are also saying to Congress, “and if you pass similar laws with similar language we will interpret it the same way.”  It’s a promise, and I think the courts should keep that promise.

In the case of Obamacare, the Supreme Court had made it clear for decades that if there is nothing in a law on severability, they will apply their own test to it.  I talked about their test yesterday.  What they made clear, however, was that they were not going to assume that the failure to include a severability clause meant it could not be severed.  So to suddenly make that assumption is, in my opinion, unfair.  It amounts to an almost surprise attack on the law.

Which is not to say that Obamacare will definitely be severed.  I think the correct reading of their test would lead the Supreme Court to strike down the whole law, if the mandate is removed.  I simply do not think that the reasoning should be “you failed to include a severability clause and therefore it cannot be severed.”  And that is where Patrick and I disagree.

Respectfully, of course.

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