In Part I of this series, I wrote that “while the left’s handwringing over the future of Wickard v. Filburn could be dismissed as hysteria or histrionics, its concern about the outcome of the severability issue [in Florida v. HHS] is firmly grounded in reality.” I owe readers a few words supporting that conclusion. * * * In Champlin Refining Co. v. Corporation Comm’n of Oklahoma, 286 U.S. 210 (1932), the Court said, Unless it is evident that the legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may…
In a post last week, I suggested that severability is the real focus of Jeff Rosen’s May 4th column in The New Republic. Some background about the Court’s severability jurisprudence will help me to explain why.
* * *
The severability issue in Florida v. HHS involves two related but distinct questions (reflected, however poorly, in the title of this and my previous post). The first is whether the entire Act is invalid, which is the flip side of asking whether any remaining provisions of the Act are severable from the individual mandate (assuming it is held to be unconstitutional). If so, then the second question is which of the Act’s remaining provisions are to be severed and upheld. These questions may sound simple, but the body of precedent the Court could apply to answer them is notoriously hard to comprehend.
Jeff Rosen’s May 4th column in The New Republic has sparked a lively discussion on this blog, the VC, and elsewhere. The article consists of two very unequal parts, because Rosen’s wind up is disproportionately long in comparison with his pitch. He leads off with a critique of Circuit Judge Janice Brown’s concurring opinion in Hettinga v. United States, available here, then lurches into a description of a “Constitution-in-exile movement” said to be made up of judges and think-tank activists hoping to “resurrect” pre-New Deal legal doctrines in order “to dismantle the post–New Deal regulatory state.”
In Rosen’s view, the “Constitution-in-exile movement” has brought about a schism among conservative jurists over an issue Rosen thinks is crucial to one of Chief Justice Roberts’ ambitions: bringing greater unity to the Court. That issue is adherence to a philosophy of “judicial restraint” that in Rosen’s opinion characterized an older generation of conservative jurists. Rosen worries that today, even “relative moderates” may be tempted to abandon that philosophy.