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Via Meadia
Fukuyama
Berger
Garfinkle
July 3, 2012
Obamacare and the Fatal Flaw
in Marbury v. Madison
Partially invalidating an unconstitutional law is much worse than
striking the whole thing down.
MARIO LOYOLA
R
eportedly, Chief Justice John Roberts was initially inclined to
strike down the individual mandate in Obamacare but switched
sides after something changed his mind. Speculation has been that it
was concern over the Supreme Court’s prestige and susceptibility to
public criticism. But I think there was an irresolvable dispute over a
crucial question of constitutional law, one that the Court never
reached because Roberts switched sides in order to avoid it.
The issue of severability—what to do with the rest of the law when
one of its provisions is found invalid—has bedeviled the Court since
its earliest days. Had the Court reached that issue in this case, it would
have been faced with the most complex and excruciating severability
analysis of its entire history. The mandate is just a single provision in a
huge law. But it is so interwoven with the health insurance reforms
(guaranteed issue, for example) that those reforms cannot function
properly without it, as both the Obama Administration and the
challengers argued. The insurance reforms are in turn organic to the
rest of the law—and the whole law is a fantastic tangle.
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Mario Loyola is director of the Center
for Tenth Amendment Studies at the
Texas Public Policy Foundation.
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I suspect that Chief Justice Roberts was willing to strike down the
mandate, and perhaps some of the insurance reforms, but not the
whole law. He would have argued that judicial deference to the
prerogatives of Congress required striking down only as much of the
law as necessary to cure it. But Justice Scalia might have insisted that
judicial deference to the prerogatives of Congress required striking
down the whole law, not rewriting it, and that upholding part of the
law would be even worse than upholding the whole thing.
If that is what happened, then the real explanation of the Court’s
decision in Obamacare lies in a little-noticed problem with what is
perhaps the most important decision in the history of the Court:
Marbury v. Madison (1803). In a case that every law student
remembers, Chief Justice John Marshall struck down a relatively
insignificant section of the Judiciary Act of 1789, which created our
system of federal courts, and left the rest of the law in place.
The case is remembered because it established the Court’s power of
constitutional review: the power to strike down laws of Congress that
violate the Constitution. That power does not appear anywhere in the
Constitution, but everyone agrees that the Court must have it,
otherwise the whole structure of the Constitution makes no sense.
Why Did Roberts
Switch His Vote on
Obamacare?
Mario Loyola
Reportedly, Chief Justice John
Roberts was initially inclined to
strike down the individual mandate
in Obamacare but switched sides
after something changed his mind.
Speculation has been that it was
concern over the Supreme Court’s
prestige and susceptibility to public
criticism. But it's also possible that
there was an irresolvable dispute
over a crucial question of
constitutional law—one that the
Court never reached because
Roberts switched sides in order to
avoid it.
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So far so good. The problem is that the power to strike down only
one part of a law and leave the rest of the law in place is not just a
lesser-included element of the power to strike down whole laws. It is
an entirely different kind of power. It is the power to rewrite laws of
Congress through a sort of judicial line-item veto. When a law is only
partially invalidated, the remaining law is one that by definition fails to
meet the Constitution’s minimum requirement for a bill to become law:
passage by both Houses of Congress, and presentment to the
President for his signature.
What is ironic in the doctrine of partial invalidation is that the Court
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invented it out of deference to the prerogatives of Congress. At first
glance, the ruling in Marbury v. Madison seems intuitively correct:
Why strike down a whole complex law on account of one tiny invalid
provision that nobody will miss?
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Leaving to a side for just a moment the constitutional problem, there is
an enormous practical problem in trying to apply any doctrine of
partial invalidation: As legislation has become more complex, laws
have become more organic, so that any provision of a law may be
inseparably interwoven with a host of others in an impossible maze of
statutory interactions. Over the last two centuries, an entire edifice of
Court rulings has been erected to tackle the issue that Marshall did not
face: What to do when the invalid provision is so interwoven with
other valid provisions that the valid ones won’t function as intended
without the invalid part?
Obamacare did not merely raise the issue: It promised the most
complex and difficult severability decision in the history of the Court.
It is not for nothing that the dissent devoted nearly twenty pages to a
severability analysis that did not come up once in the majority opinion.
It would have been surprising, actually, if five votes could have been
mustered in favor of any outcome on the severability issue, precisely
because the possible outcomes were so many.
The Court’s current formulation of how to resolve the severability
problem is a two-part test: Unless (1) it is evident that Congress would
not have enacted the valid provisions independently of the invalid part,
the invalid part may be struck, if (2) what is left is fully operative as a
law. Roberts himself wrote the last major articulation of that
standard, Free Enterprise Fund v. Public Co. Accounting Oversight
Bd. (2010). But in oral argument Justice Antonin Scalia stressed, as
many Justices have, that this test draws the Court into pure
speculation about what Congress might have intended in an imaginary
bill that never became law.
That is the sort of argument that Supreme Court justices can spend
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That is the sort of argument that Supreme Court justices can spend
many years having. And had the Court ever reached the severability
analysis, it would likely have mired the judges in rehearsing that same
argument over and over again with respect to countless different
provisions of the law. The potential for an enormous waste of time
was almost infinite. It is entirely conceivable that Roberts saw this
quicksand ahead, and simply refused to go near it.
But that is the quicksand the Court steps into when it embraces any
doctrine of partial invalidation. There are no two ways about it: When
the Court partially invalidates a statute, it is proclaiming, by decree, an
entirely new law that might never even have occurred to anyone in the
legislature.
It is crucial to understand that the partial invalidation of a law is not a
single action, but rather two separate ones. First of all, the Court
exerts the power of constitutional review and invalidation. Okay. Still,
that action must precede a second action, namely that of proclaiming
what the valid law is. When the Court partially invalidates a law, and
upholds the rest, it must first decide that the law is invalid as written,
and then it must proclaim what the new law is. Nobody disputes that
it the Court has the power to do the first of these; should it have the
second? The Court is charged with interpreting acts of Congress, but
that power should not extend to replacing acts of Congress with
entirely new laws that no Congress ever acted on.
The text of the Constitution is absolutely clear that in order for a bill to
become law it must be enacted by Congress and it must be presented
to the President. Both Congress and the President are accountable to
the people, and the basic responsibility of their office is to represent
the voters. Their constitutional prerogative is clearly diminished when
either is deprived of its power to consider a proposed law as a whole
before deciding whether to enact it.
Who cares what Congress might have done with a bill that was never
voted on? Whatever it might have done, it didn’t do it. And yet, out of
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supposed deference to Congress, Marbury v. Madison instructs the
Court to saddle the country with laws that no Congress ever passed.
The reasonable legislator might object that it is virtually impossible to
predict what the Court might find unconstitutional, and that he would
rather the Court just delete any problematic provision and leave
the rest of his handiwork in place.
But that is not convenient for the people; on the contrary, it is
convenient only for the legislator and the special interests he’s mindful
of, precisely at the expense of the people.
We hold our representatives accountable for the laws they vote on.
That is why bills must be enacted by both houses of Congress before
they can become law. The Constitution clearly entrusts lawmaking to
the legislative and executive branches, and makes it no part of the
Supreme Court’s competence. Out of deference to Congress, courts
should vote up or down on the constitutionality of laws, and not take
it upon themselves to rewrite them.
To the extent that Marbury v. Madison establishes a power of partial
invalidation of laws, it should be reversed. That would preserve the
prerogatives of Congress and of the people. And Congress would have
to be more careful about the Constitution when it writes its laws.
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