Professor Joel Alicea (00:04):
Well, good afternoon and welcome. We’ll begin as always, in the name of the Father, and of the Son, and of the Holy Spirit. Amen. Let us pray. All the nations shall come to adore and glorify your name, oh Lord, for you are great and do marvelous deeds. You, who alone, are God. Show us, Lord, your way that we may walk in your truth. Gladden our hearts, that we may fear your name. Amen. In the name of the Father, and of the Son, and of the Holy Spirit. Amen.
(00:33):
Welcome to the Inaugural Chair Lecture for the Knights of Columbus Professor of Law and the Catholic Tradition. A chair now held by my friend and colleague, Kevin Walsh, who also serves as my co-director for the Project on Constitutional Originalism and the Catholic Intellectual Tradition, or CIT, here at the Catholic University of America. CIT is sponsoring this chair lecture, so let me just say a quick word about it.
(00:57):
CIT explores the relationship between the Catholic intellectual tradition and American constitutionalism. We’re now in our second year of programming. We have a lot of events planned for this upcoming year, starting with this one. This is our first event of the year. We sponsor speakers events, fellowships, courses, all sorts of things here at CUA. If you want to learn more, you can look us up at CIT.Catholic.edu.
(01:20):
Sign up for our email list, listen to our podcast, Ordain and Establish, and check out our YouTube channel for all of our past events and future events. But while CIT is the sponsor of this event, the star of the event is Professor Walsh, who was installed as the first Knights of Columbus professor of law in the Catholic tradition last November, in a ceremony here at the law school.
(01:41):
It’s customary for professors holding endowed chairs to give a chair lecture when they’re installed in the chair. For various reasons, we weren’t able to do that last year and so we’re remedying that today. I know I speak for Dean Payne, when I thank the donors who made this chair possible and this day possible. The Knights of Columbus chair was established last year through the university, through the generosity of the Knights of Columbus and an anonymous donor.
(02:09):
We’re deeply grateful to our donors for their generosity in endowing this chair. As the name of the chair states, it’s designed for a scholar who explores the relationship between the law and the Catholic tradition. I can think of no better scholar to serve as the inaugural occupant of this chair than Kevin Walsh. Professor Walsh likes to dispense with speaker bios whenever he’s introducing a speaker at an event.
(02:33):
But given that we are here to celebrate his historic appointment, it’s fitting that I describe at least a few of his many achievements. Professor Walsh is a graduate of Dartmouth College and Harvard Law School, and fittingly for this chair, he also earned a master’s in theology from Notre Dame. After clerking for Judge Niemeyer on the Fourth Circuit and Justice Scalia on the Supreme Court, Professor Walsh spent three years practicing law at Hunton & Williams.
(02:57):
He was appointed to the faculty at the University of Richmond in 2009, where he remained until last year when he joined the Catholic Law faculty. Professor Walsh has an extensive record of scholarly publications, but I want to highlight just three, which are particularly relevant to his chair and to his lecture today. In his 2010 article, Partial Unconstitutionality, published in the New York University Law Review, Professor Walsh argued that modern severability doctrine is deeply flawed in a historical.
(03:25):
He instead proposed an approach emphasizing the displacement of statutory or ordinary law where it comes into conflict with the higher law of the American Constitution. Justices Thomas and Gorsuch have cited and relied on Professor Walsh’s article in numerous opinions. Calling for reform of the court’s approach to partial unconstitutionality, largely adopting his view in the process. That article, among many others, established Professor Walsh’s reputation as one of the nation’s foremost scholars of federal court’s doctrine.
(03:55):
In his 2016 article, Enduring Originalism, co-authored with Notre Dame law professor, Jeff Pojanowski, who serves on CIT’s Council of Advisors. That article, published in the Georgetown Law Journal, argued against legal positivist justifications for originalism, contending instead that the natural law tradition supplied a firmer foundation for originalism. The relationship between natural law theory and originalism has become a hot topic in American constitutional theory scholarship recently.
(04:24):
Professor Walsh and Professor Pojanowski’s 2016 article can rightly be seen as the beginning of this renewed attention to that relationship. In 2022, Professor Walsh published a book review with Professor Pojanowski critiquing Professor Adrian Vermeule’s book, Common Good Constitutionalism. Just as Professors Walsh and Pojanowski had stood against positivist constitutional theories in their earlier work, they stood against mistaken applications of natural law theory in that article.
(04:53):
Thus, Professor Walsh’s scholarship has had two major themes among several themes. First, reforming federal court’s doctrine and second, applying the Catholic intellectual tradition to American constitutional theory. In today’s chair lecture, he brings those two themes together. So please join me in welcoming Professor Walsh.
Professor Kevin Walsh (05:21):
Well, thank you, Joel. The title that I have is co-director of Project on Constitutional Originalism and the Catholic Intellectual Tradition, and that has a lot of potential. But you will see that in terms of actual direction, what you are seeing with CIT and with what’s happening as part of this program. Professor Alicea has been providing actual, substantial direction, and really has capped off incredibly successful last year and this is the beginning of our second year.
(05:59):
Thank you, Joel. Thank you to Dean Payne and to the donors who support this chair, for not just the material support but for the vision of bringing together the law and the Catholic tradition, in a focused way here at the Catholic University of America. I’d particularly like to thank my colleagues on the faculty and my students. Thank you for trusting in me. Thank you for letting me teach and to study with you.
(06:36):
Now for the lecture. Judges not only find and apply the law, but change it in the course of doing so. How? In particular, how does a federal court change the law in the course of constitutional adjudication, in a case in which the court holds a federal law unconstitutional? What consequences does such a holding have for the law as itself and for the law as applied in future cases? Those are the questions I will address this afternoon.
(07:10):
My title is Judicial Power and Potential Unconstitutionality: A Scholastic Perspective. I will begin with the scholastic perspective portion. After introducing St. Thomas Aquinas’s account of law and the Aristotelian distinction between act and potency in the first part. I’ll turn in the second part of my remarks, to the bearing of these distinctions on the nature of the judicial power. This will then set up the third part, in which I address specific problems of potential unconstitutionality.
(07:42):
By which I mean problems about how a court should proceed, when some application of some law in a case is unconstitutional. I’ve sometimes described in a shorthand that my research agenda operates at the intersection of the great Chief Justice John Marshall and the angelic doctor, St. Thomas Aquinas. In keeping with this approach and to ensure the juridical orthodoxy of my approach to problems of potential unconstitutionality.
(08:10):
I will offer throughout, commentary on a rightly famous but occasionally misunderstood paragraph from Marbury versus Madison. A paragraph that is too often known just for its first sentence. By very, very faint analogy to the mystery of God, that may not do much more than provide a three barbed hook to keep any nibbler on the line. I will suggest that the full meaning of this one paragraph, requires attending to the distinct mission accomplished by each of its three sentences.
(08:43):
Here is Marshall’s language from Marbury for us to keep in mind. It’s right at the top of your handout, which will come in handy later on, but here’s the language from Marbury. One, it is emphatically the province and duty of the judicial department to say what the law is. Second sentence, those who apply the rule to particular cases, must of necessity expound and interpret that rule. Third sentence, if two laws conflict with each other, the courts must decide on the operation of each.
(09:21):
Here I have in my notes, “Repeat for emphasis,” but you have a handout. Keep these three sentences in mind. Part one, scholastic perspective. The Dominican priest and Thomist philosopher, Father Lawrence Dewan, collected a number of his essays for publication in a book with the title Wisdom, Law, and Virtue. This title identifies what those of us professing law in the Catholic tradition should seek.
(09:49):
In his introduction, Dewan describes his contributions to the perennial philosophy as investigations that, “View the history of philosophy as the development of basic doctrines long discerned and taught. A development by way of deepening appreciation, as opposed to constant replacement of one worldview by another.” The idea, Dewan continues, is to see one’s forebears in Socrates and Plato, Aristotle and Plotinus, and most especially in St. Thomas Aquinas.
(10:25):
Now in carrying on this tradition, there will be a conference at the Dominican House of Studies just down the street next week, exploring the question of whether and how St. Thomas remains the common doctor or common teacher of the church. The title of that conference is a question. Aquinas After 750 Years:q Still the Common Doctor? For the study of law and for this law school, the answer is emphatically yes. We have the CIT project.
(11:01):
As part of that project, we also have courses on law in the Catholic intellectual tradition. Indeed, next week, St. Thomas’s well-known definition of law, is the reading assignment for the class that is taught by Professor Bill Rooney, with some collaboration from me on law in the Catholic intellectual tradition. This definition is in question 90, article four of the Prima Secundae, or first part of the second part of the Summa.
(11:32):
Returning to Aquinas’s definition of law after two weeks in which we have explored the beginning of legal historian Stuart Banner’s book, The Decline of Natural Law: How American Lawyers Once Used Natural Law and Why They Stopped. Now a better title for Banner’s book would’ve been The Eclipse of Natural Law, for the natural law remains a light, even if it’s raised or deflected or blocked, in our legal reasoning.
(12:00):
Aquinas’s well-known definition of law has four parts. Law is an ordinance of reason for the common good, made by him who has care of the community and promulgated. These four parts correspond to the metaphysical context supplied by Aristotle’s four causes or explanatory principles. As Professor J. Budziszewski explains in his commentary on St. Thomas’s definition of law, if by a cause of thing we mean whatever gives rise to it.
(12:35):
Whatever explains it, whatever is in any way its reason why, then there are four different senses in which the term cause may be used. To give a rounded account of anything, we must identify all four. These are also on your handout. The four causes are formal cause, final cause, efficient cause and material cause. I’ll say a little bit as we map those onto Aquinas’s definition from question 90, article four. Law is an ordinance of reason.
(13:08):
That’s the formal cause. For the common good, the final cause, made by him who has care of the community, efficient cause. By the way, in torts, for example, or other areas of the law, when we talk about causes, it’s usually efficient cause that we’re talking about, right? Formal cause and final cause are less familiar with the terms cause. But they’re all part of a full explanation of a phenomenon or a thing that’s out there in the world.
(13:37):
Then finally, law is promulgated. This is the material cause. Now, in the strict sense of the term, Budziszewski explains, the essence of law is its formal cause, an ordinance of reason. But St. Thomas brings in the other three causes because they’re essentially connected with its formal cause. When considering a written human law made by humans, that law is not identical with the words by which it is promulgated.
(14:08):
Those words are a material cause of the law. In describing the words of a written law as a material cause, I hasten to make clear, a material cause need not be matter in the corporeally extended sense in which that term is typically used now. Again, from Professor Budziszewski’s commentary, “For St. Thomas, the term matter has a broader meaning than it does in our own day. Matter is anything that can receive a form.”
(14:38):
Okay, so the words of a law are signs. They signify the mental reality, the ordinance of reason that is the form of law. Okay. How does this map on to the distinction between act and potency, which is my primary distinction that I’ll be working with? It helps at the outset to appreciate the way in which act corresponds with form and potency with matter. Consider the enactment of a new law. That enactment is the efficient cause of a new law.
(15:11):
It’s what brings it about. The enactment is to be understood in service of the common good, the final cause. But the very word enactment, points to the essence of what the law is, an ordering act. To enact a law, is to put a law into act, to action. The written words of that enactment are a material cause. They supply the potency of the law to which the legislative or lawmaking act has given rise.
(15:48):
After enactment, the words of a law are on the books, so to speak, for potential enforcement. Then when a court is asked in the exercise of its jurisdiction to apply the law, it then becomes, in the words of Chief Justice Marshall, “The province and duty of the judicial department to say what the law is. What the law is, we have seen, is a combination of form and matter, act and potency.” Now to say what the law is, we’ll get to a case now.
(16:17):
To say what the law is, it is sometimes enough to just read off the words of the statutory text in their context, but think about Marbury versus Madison itself. That case shows that the law that arises from statutory text, needs to be understood within the larger body of law of which it is a part. In that case, Marshall interpreted Section 13 of the Judiciary Act of 1789, to authorize the issuance of a writ of mandamus in the exercise of the Supreme Court’s original jurisdiction.
(16:49):
There was statutory authorization. But he went on to hold for the court that this purported act was void, insofar as it purported to authorize original jurisdiction beyond that authorized by the Constitution, superior law. The words of Section 13 were a dead letter in Marbury’s case. Jurisdictional potency that could not be actualized by exercise of the judicial power in that case.
(17:22):
In taking a first cut at the motivating questions of this lecture in light of Marbury versus Madison, we can ask how the court’s ruling in that case changed the law. One answer and one with a good pedigree of juridical orthodoxy, denies that any change in the law took place as a result of the judicial decision. On this no change view, the judicial decision announces what the law is. What the law is you see, is what the law was before the judicial decision and what the law will be after the judicial decision.
(18:00):
A judicial decision is a declaration that does not change the content of the law, not of any law in particular, and not of the overall body of law. Now another answer and one with some prominent defenders in the past, though not much of a pedigree for orthodoxy, is that there was no law to change. On this view, the law just is a prediction of what courts will do. In fact, each new decision is new law kind of. Each prior attempt at law is just as good as its prediction value for the next change in the law.
(18:36):
Those are two answers. Now a third answer, let me give you the one that is embedded in our doctrine most prominently right now. This is what I call the conventional understanding of what happens. This has a pedigree dating back to the mid to late 19th century. 1875 was the first time the Supreme Court relied on this view in holding a statute unconstitutional, but it had been percolating in lower courts for about two decades. On this view, the judicial decision changes the law by a subtraction or excision.
(19:17)
I describe it this way because this is associated with the idea that every finding of partial unconstitutionality, is implicitly or explicitly accompanied by or followed by a finding of severability of the unconstitutional parts or applications. Take, for example, the 2020 decision of the Supreme Court in Barr versus American Association of Political Consultants. Read to you from Justice Kavanaugh’s plurality opinion, one that was joined by Chief Justice Roberts and Justice Alito.
(19:53)
It’s not in your handout, that will come in handy though, but here’s what Justice Kavanaugh wrote. He said, “Applying the presumption of severability, the court invalidates and severs unconstitutional provisions from the remainder of the law, rather than razing, R-A-Z-I-N-G, whole statutes or acts of Congress. Constitutional litigation is not a game of gotcha against Congress, where litigants can write a discrete constitutional flaw in a statute to take down the whole otherwise constitutional statute.”
(20:31)
If the rule were otherwise, the entire judiciary act of 1789 would be invalid as a consequence of Marbury versus Madison. Okay? The court had to subtract, in order to save the rest. That’s the excision view. Now I will add, that Justice Kavanaugh drops a very extensive footnote right there, that flags some of the problems that will lead to some of the later cases that we’ll see. But as a statement of the conventional view, I will assert that this formulation is representative. Okay?
(21:08)
In prior scholarship, I’ve argued why this excision-based understanding is mistaken, and here I’d like to develop further and depart in some ways from aspects of the earlier scholarship. By way of development, I think the best way to understand the change that results from a judicial holding of unconstitutionality, is neither no change nor no law to change, nor subtraction, but rather something more like addition.
(21:37)
Put in quantitative terms, you might say that there’s more law after a holding of unconstitutionality, not less. Even this quantity-based imagery is too tied though to a material way of conceptualizing the law. As I see it now, problems of partial unconstitutionality are better understood as problems of potential unconstitutionality. Indeed, in asking how a judicial holding of unconstitutionality changes the law.
(22:09)
We’ve backed into a version of a problem of change within continuity, for which Aristotle understood the distinction between act and potency to be a solution. Now we’ll get the scholastic perspective here, because the Aristotelian view will be developed by Aquinas and other scholastics. As the philosopher, Edward Feser, explains in his book, Scholastic Metaphysics: A Contemporary Introduction.
(22:38)
Aristotle introduced the distinction between being in act and being in potency, in order to account for change and multiplicity within a framework of unchanged reality and continuing unity. That’s exactly the kind of distinction that we need for the problem of partial or potential unconstitutionality. This distinction between act and potency is so central to Scholastic Metaphysics, that it structures Feser’s entire book-length introduction to the topic and that is no accident.
(23:11)
This distinction is an essential element of what Pope Leo XIII described as the noble wisdom of the ancients, in his 1887 letter to Cardinal Gibbons promoting the foundation of this university, the Catholic University of America. In this letter, Pope Leo explained that, and I quote, “From the moment that the government of the church was committed,” to him. He had, “Labored assiduously for the revival of learning.”
(23:41)
Directed his efforts especially to the restoration of the teachings of St. Thomas, to establish them in the place of honor they held in the past. He wrote that, “While full account should be taken of all the results, which the industry of learned men has skillfully and wisely attained to in recent times, the system of philosophy should be shaped according to the noble wisdom of the ancients. And follow with docile zeal in the footsteps of the angelic doctor. Let us then with docile zeal proceed.”
(24:14)
Feser traces the first Thomistic thesis. Okay, so now we get to the development of the act potency distinction. Feser traces the first Thomistic thesis, which refers to the distinction between act and potency, back to Aristotle’s response to the Iliads represented by Parmenides on the one hand, and to Heraclitus on the other hand. For purposes of exposition, I’m going to rely solely on Aristotle’s answer to Parmenides in introducing this distinction between act and potency.
(24:48)
This will be helpful to follow along in the handout. The challenge from Parmenides is that there is no change. There’s no change. His argument is one, change would require being to arise out of non-being or nothingness, premise one. Premise two, but from non-being or nothingness, nothing can arise. Three, so change is impossible. That’s the challenge. Aristotle’s answer is the distinction between act and potency. How does that work?
(25:22)
Aristotle agrees that nothing comes from nothing, proposition two. Aristotle also agrees that if change requires something to come from nothing, then change is impossible. That’s the logical conclusion of proposition three. Aristotle challenges proposition one, that change requires being to arise out of non-being or nothingness. Aristotle asserts that change involves the actualization of potential being, a shift from being in potency to being in act.
(25:59)
Change is the actualization of a potential, of something previously non-actual, but still real. What does this distinction between being an act and being in potency have to do with understanding the judicial power? Actually, potentially everything. Armed with this distinction, I propose we can make better sense of judicial practice and the doctrine that governs or should govern it. Part two, judicial power.
(26:34)
To get a handle on the way that the distinction between act and potency makes problems of potential unconstitutionality more tractable, let us begin with understanding what a power is. A power is an active potency. A power operates as an efficient cause, also called an agent, which brings something into being or changes it in some way. An efficient cause, a power, actualizes a potency.
(27:02)
It does so by exercising its own active potencies or powers. So much for a power. What of the judicial power of the United States? Here we return to Marbury. I count four or five different operations identified by Marshall in our three sentence paragraph. One, he says to say what the law is. Two, apply the rule to particular cases. Three and maybe four, expound and interpret that rule.
(27:35)
Four, maybe five, decide on the operation of each conflicting rule. Putting aside the first one to say what the law is, the other three or four all appear to be exercises of a power, in the sense of changing something in some way. Doing something with the law, applying it, interpreting it, expounding it, deciding on its operation. For a judge resolving a case, it’s one thing to say what the law is. It’s another thing to apply the rule to a particular case.
(28:09)
Another to expound and interpret it, yet another to decide on the operation when two laws conflict with each other. Now let’s focus on expounding and interpreting. Marshall’s second sentence. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. For this, let’s get a real case. Chief Justice John Roberts opinion for the court in NFIB versus Sebelius, not on your handout.
(28:42)
This was the 2012 opinion in which a five justice majority, led by Roberts, upheld the so-called individual mandate in the Patient Protection and Affordable Care Act, as a permissible exercise of Congress’s power to tax. That holding came only after a different collection of five justices, also including the chief justice. Had determined that the individual mandate was unconstitutional, in excess of Congress’s powers under the Commerce Clause and Necessary and Proper Clause, if the relevant rules were understood to be a mandate to buy insurance coupled with a penalty.
(29:19)
The price of upholding this aspect of the law, was for Roberts to expound and interpret the requirement to have coverage by a compliant health benefits plan as a tax provision, rather than as a mandate backed by a penalty. This interpretation was driven by the canon of constitutional avoidance, which says that judges should not interpret a federal statute to render it unconstitutional, if it’s reasonably possible to interpret the statute in a way that saves it.
(29:54)
The activity of expounding and interpreting was different than just saying, “This is what the law is,” just saying that. How should we understand the change in the law worked by Chief Justice Roberts in that case? The joint dissent, four justices in dissent, charged that Roberts rewrote the law, a legislative act in effect. Roberts replied that he had a duty not to follow the most straightforward reading if that would render it unconstitutional.
(30:23)
But rather to follow a fairly possible reading that would render the rule within Congress’s powers. This duty was drawn from an unwritten principle, but one in the law from prior cases, that every reasonable construction must be resorted to in order to save a statute from unconstitutionality. In expounding and interpreting, Roberts perceived a necessity to provide a saving construction. This is a different activity than just saying what the law is.
(30:54)
It’s also that, but it’s doing something to the law in order to save it. Recognizing that this category of permissible saving constructions does have some boundary beyond which the activity would amount to impermissible legislation. How should we understand this exercise that changes the law in order to save it in some ways? As I see it from a scholastic or neo, neo, neo-scholastic perspective, the categories of act and potency lends significant analytical help here.
(31:31)
In keeping with the recognition of the words of a statute as a material cause of the law, we can see the range of permissible interpretations of those words as passive potencies of the law. Okay? As the exercise of judicial power to expound and interpret it, as activating in some ways, one of those potencies to the exclusion of others. We can understand the judicial decisions requiring or forbidding the activation of some of these potencies as exercises of this judicial power.
(32:09)
Which again, is the power to actualize a potency. On this understanding, both the judicial power, what it can and can’t do, as well as the statutory text, those are potencies that limit what the law can be. The potency limits act here. The judicial power is only capable of causing a certain range of effects, and the statutory text is capable of only taking on certain forms. With this Aristotelian understanding in place, we can cut through, I think, some unhelpful and inaccurate accounts of judicial power as not changing the law.
(32:49)
On the one hand, that would be an Iliadic error, there is no change. Or is everything being changed and they always just make new law. That would be a Heraclitean error. In the account I’m offering, judicial rulings add new orders to the law. They activate some potencies and close off others. Just as a matter of clear thinking, the closing off of certain potencies, this can be understood as adding new orders, right? Don’t interpret it as a mandate backed by a penalty.
(33:22)
You must understand this to be a tax, only a tax. It’s a judicial order. Now these decisions, they order the parties and others through the law of judgments, the law of remedies, the law of precedent, to activate or not activate certain potencies in the law, okay? These are things that are real, potential but not actual. They get applied in a certain way, they’re activated.
(33:48)
Okay. I’ve chosen this particular example because it’s difficult for anyone who accepts as sometimes permissible, the activity of judicial saving constructions, to deny the reality of permissible judicial changes in the law in constitutional adjudication. In my view, however, understanding judicial power as an act of potency and statutory text as a passive potency, provides a satisfactory account of judicial application of the law more generally.
(34:19)
Judges applying the law are always doing something to and with the law, in addition to saying what it is. With this, I now turn to the third part, applying this to the problems of potential unconstitutionality. Here now, we have to understand there’s been a major change of mind by Justice Clarence Thomas that, I think, is on its way to carrying the court, if it hasn’t done so already. That’s why I’ve lined up all those quotations on the back of your handout.
(34:57)
We will closely read those later, but the drama here is Justice Thomas changed his mind. This change of mind happened sometime between June 28th, 2012, when Justice Thomas joined the joint dissent in NFIB versus Sebelius, and May 14th, 2018 when he published a solo concurrence in a case called Murphy versus NCAA. If I’m reading the opinions correctly, this change of mind does appear on its way to becoming actualized in a way that sticks.
(35:37)
The change of mind is Justice Thomas’s forceful challenge to the continuing soundness of conventional severability doctrine, that he joined in applying in the joint dissent in NFIB versus Sebelius. By the time of his concurrence in Murphy, he recognized that this doctrine, applied by the court for better or worse since the late 19th century, was prudentially unsound, constitutionally questionable, and in serious tension with traditional limits on judicial authority.
(36:06)
Justice Thomas is right that there’s a better way. It’s a way with deeper roots in the American constitutional tradition and in traditional understandings of judicial power more generally. Before getting to that opinion in Murphy, let me just set the stage a little with how the position that he rejected, actually operated in NFIB versus Sebelius or would have operated if that dissent had just one more vote.
(36:36)
I’ve mentioned the constitutionality of the individual mandate being upheld, but also in that case there was an expansion of Medicaid. By a seven to two vote, a seven to two majority held that the expansion of Medicaid was unconstitutional. This required the majority under conventional doctrine to apply severability. They found that the unconstitutional expansion was severable. Okay, fine. Somewhat unexceptional.
(37:03)
But the joint dissent, the joint dissent, now they thought the individual mandate was unconstitutional, as well as the Medicaid expansion. Okay? Here’s what they thought because there’s a two part test for severability. Is this severable? You don’t just say yes or no. You ask first, “Can it function? Can the remainder of the statute function without the unconstitutional provisions?” That’s step one.
(37:28)
Step two is to ask whether Congress would’ve preferred no law at all to the law that would result from continued enforcement of the constitutional remainder, in the absence of the unconstitutional provision. Okay? The joint dissenters applying this approach, contended that the parts of the law that were unconstitutional could not be severed from the other parts of the law. Under the excision-based logic, you have to sever in order to save.
(38:00)
Without the Medicaid expansion and individual mandate, they reasoned other major provisions, like insurance regulations and taxes, reductions in federal reimbursements to hospitals, other Medicare spending reductions, the new health insurance exchanges and their subsidies, employer responsibility assessment. None of those could function as Congress had intended, so those fell at step one.
(38:21)
Then at step two, there were a whole bunch of other minor provisions. The major provisions had to go at step one, but minor provisions like a required break time and a secluded place at work for nursing mothers. The display of nutritional content at chain restaurants, taxes on tanning booths. The extension of Medicare coverage to individuals exposed to asbestos from a mine in Libby, Montana, population 2,775, or increased Medicaid payments just for people in Louisiana.
(38:50)
Those could still function as Congress had intended, but these two had to be invalidated and rendered unenforceable, said the joint dissent. Because there is no way of knowing that Congress would’ve enacted them, in the absence of the unconstitutional, individual mandate in Medicaid expansion. Here the joint dissenters embraced the metaphor. It actually came into case from an amicus curiae brief filed on behalf of Senate Republicans, and this was the Christmas tree metaphor.
(39:24)
I quote from the joint dissent, “When we are confronted with such a so-called Christmas tree, a law to which many nongermane ornaments have been attached. We think the proper rule must be that when the tree no longer exists, the ornaments are superfluous.” This aspect of the opinion, the use of inseverability doctrine or purported use of inseverability doctrine to hold the whole Affordable Care Act entirely inoperative and unconstitutional, was a low point of judicial reasoning.
(39:58)
To be fair though, it was an entirely unsurprising application of conventional severability doctrine, which had been used by the court in the past, in exactly this way, to invalidate big regulatory statutes. Most notably, in the early 1930s before the so-called and misleadingly labeled switch in time that saved nine, but the doctrine was bad. The Christmas tree metaphor made it worse.
(40:23)
It’s unclear whether the justices in the joint dissent, who would’ve used that metaphor to take down the entirety of the Affordable Care Act, were paying attention just to the awful optics of using a metaphor drawn from the Senate Republicans, the opposition to this. But this was just a dissent, right? It was hastily thrown together for a variety of reasons.
(40:46)
I’m only speculating here, but I think there was something about this experience applying conventional severability doctrine, that eventually led to serious unease and rethinking by Justice Thomas. This rethinking was helped along, I’m speculating, by a law review article later written by a former clerk, Brian Lee. Lee now a partner at Jones Day. Among other things, he argued against the practice of issuing what he termed gratuitous severability rulings.
(41:17)
The argument is that when a court renders a gratuitous severability ruling, it determines the severability of provisions or applications that do not injure the litigants before it. It does so after adjudicating those claims. There’s this law review article, and I think the experience, the reflection on this, does this make sense? Now to Murphy, let me ask you this question. Do you detest advertisements for sports gambling as much as I do? Do you? I can’t stand them.
(41:55)
They’re everywhere it seems. Well, if you like me, do not appreciate all this sports gambling advertising, if you’re with me on this, we have Murphy’s law of inseverability doctrine to thank for it. In Murphy, a majority of the court used inseverability doctrine to hold entirely unconstitutional or inoperative, a law, the Professional and Amateur Sports Protection Act, PASPA.
(42:25)
A law that by the court’s own lights, was only partially unconstitutional. In this case, the court held unconstitutional a provision, that forbade states from legislatively authorizing sports gambling. That was unconstitutional. A separate provision banned the advertising of sports gambling and other things related to sports gambling. That provision did not suffer from the same constitutional infirmity, as the one held unconstitutional.
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The court didn’t even consider whether this provision would’ve been unconstitutional. But applying inseverability doctrine, a majority of the court determined that the advertising of sports gambling ban in PASPA, fell with the authorization of sports gambling ban in PASPA. Justice Thomas joined the opinion for the court, but he authored a solo concurrence that I will briefly summarize here. Here’s his case against severability doctrine in Murphy.
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Okay. First, he observed that early American courts didn’t have a severability doctrine. They recognized judicial power as fundamentally the power to render judgments in individual cases. Judicial review is a byproduct of that process. Okay, so it’s a historical claim about judicial practice in the United States. For this, he cited the first two sentences of our Marbury versus Madison, tying the province and duty of the judicial department to the necessity to apply it in a particular case.
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He said, “When early American courts determined a statute was unconstitutional, they would simply decline to enforce it in the case before them.” There was no next step at which they inquired into severability. Treating this traditional practice as truly orthodox, Thomas identified multiple ways in which modern severability doctrine departed from it. One was to treat severability as a remedy and ask which provisions must be excised.
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But relying on the scholarship of Professor John Harrison, Justice Thomas explained that invalidating a statute is not a remedy like an injunction. Citing the scholarship of Jonathan Mitchell, a 1937 opinion of the attorney general, Thomas added that courts do not have the power to excise or strike down statutes. So they don’t have this power. Second, even if they did, and even if severability were understood as statutory interpretation rather than a remedy of some sort, there’s two more problems.
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One is it doesn’t follow normal principles of statutory interpretation, okay? It requires an inquiry into hypothetical, congressional intent. What would they have wanted, not rather than what did they enact? The last point, coming back to the clerk in his article, is that severability doctrine often requires courts to weigh in on statutory provisions that no party has standing to challenge. Bringing courts dangerously close, he said, to issuing advisory opinions.
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Okay. He concluded in every other context, a plaintiff must demonstrate standing for each part of the statute that he wants to challenge. The severability doctrine is an unexplained exception to the normal rules of standing, as well as separation of powers, principles those rules protect. Okay. In some modern severability doctrine, intention with longstanding limits on the judicial power. In my view, this solo concurrence struck a blow to conventional severability doctrine from which it’s never recovered.
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I think it’s proven fatal, if not very, very close to fatal perhaps. Last line of cases, and this is the one on your handout, right? This is where we have to see, so what has the court done with all this? Okay. There’s a trilogy, okay? I will call this the severability disregard trilogy, but you can decide for yourself what’s happening at the court. There’s a 2010 decision called Free Enterprise Fund versus Public Company Accounting Oversight Board.
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10 years later, there’s the Seila Law decision versus Consumer Financial Protection Bureau. Then in 2021, United States versus Arthrex. All three of these are signature cases of the Roberts court cases, in which a majority of the court has held unconstitutional an agency structure created by Congress. Then use severability doctrine to facilitate those holdings of unconstitutionality, by minimizing the resulting disruption.
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Here in the written portion of this lecture, I would go through each of those, but to draw on the great philosopher, Mandy Patinkin, also known as Inigo Montoya, “Let me explain. No, there is too much.” Let me sum up. To do this, follow along in the handout here, starting with the AOT decision, okay? This is an opinion by Justice O’Connor from 2006. Then we’re going to track how Roberts uses this language, okay?
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You see that there’s two ways of dealing with an unconstitutional statute or a statute that’s partially unconstitutional. One is to enjoin unconstitutional applications while leaving other applications in force, and the other is to sever. We have options here. That’s AOT, and notice a couple things about this. They talk about the flaw in hearing in the statute somehow rather than its application, but there’s two ways to limit the solution to the problem.
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Now let’s go down the next three cases. As you go down those cases, I want you to ask which team Roberts is on when it comes to severability. The names of the teams will correspond to the metaphor that’s operating to describe this power. One is Team Excision. This team is committed to the view that the change in law from severance is a subtraction out, taking away, carving out of the bad parts. The other is Team Disregard.
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This team is committed to the view that the change in law that results from what the doctrine calls severance, is a command to disregard as governing law, the metaphorically severed law. That bad law doesn’t go anywhere, it’s just disregarded. First, look at Free Enterprise. All three of these now are by the same author, similar problem in each, okay?
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He stitches together some parts of AOT and says, “Generally speaking, we try to limit the solution to the problem.” It says severing. Okay, that’s Roberts characterizing, as you look up, that’s a fair characterization of one of the options in AOT, severing problematic portions. Then he continues and talks about partial rather than facial invalidation as an operation. Which team, excision or disregard? This one’s pretty easy, right?
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This is how could it be anything other than excision? After all, the opinion speaks of severing problematic portions while leaving the remainder intact. The normal rule is partial invalidation, okay? Now, Seila Law 2020. You see that same language, he’s quoting Free Enterprise Fund, which was quoting AOT. He leaves the internal quotation marks and citation out. That’s okay in some ways, but his severing is now it’s unitary rule, severing any problematic portions.
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Then he talks about in the absence of a severability clause, the traditional rule is that the unconstitutional provision must be severed, so on and so forth. Again, which team? Easy one, super easy. Excision, no doubt about that. He’s elevated the governing test. He’s elevated into the governing test, the word severing that he used in characterizing AOT and Free Enterprise. It’s all seamless. One quotation from Free Enterprise Fund, pretty good.
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In Free Enterprise Fund, he collapsed two approaches identified by O’Connor in AOT into just one. Then in Seila Law, he presented the single approach in one seamless quotation, from the chop and stitch job in Free Enterprise. Not only does it seem as of Seila Law that Roberts is committed to Team Excision, but he has successfully committed a court to a majority of that position. Now look at this third case in this severability transformation trilogy.
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Arthrex, 15 years after AOT, one year after Seila, and I’ll skip the part that explains the constitutional flaw, but again, they have some provisions that they’re going to end up, well, what are they going to do to them? Well, he’ll tell us. In general, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem, by disregarding the problematic portions while leaving the remainder intact.
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Here he’s quoting the same language from AOT, that he quoted in Free Enterprise Fund and Seila. But instead of describing the operation as severing, he describes it as disregarding. Then he continues, he’s not treating this as just a word thing. He’s now justifying why he’s using the word disregarding. He’s tracing it back to a very important, it’s a combined set of decisions from 1923 called Massachusetts versus Mellon, and Frothingham versus Mellon by Justice Sutherland.
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He says, “This approach derives from the judiciary’s negative power, to disregard an unconstitutional enactment in resolving a legal dispute. In a case that presents a conflict between the Constitution and the statute, we give full effect to the Constitution and to whatever portions of the statute are not repugnant.” Boy, that sounds an awful lot like activating some things, right? We give full effect to all of it and then we disregard the others.
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Then he says effectively severing, so he’s now trying to say these are actually the same thing. Notice he quotes an 1829 opinion by Chief Justice Marshall. You don’t have to read the opinion, I can tell you, but you should read it and check my homework. There was no severability in Marshall’s way of thinking, okay? The effective severance, you’re not going to find it in that case. What team here? Is it Team Excision, Team Disregard?
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He seems to be entirely on board with disregard. Took the same language and now it’s disregarding. He’s tapping directly into the reasoning of Justice Thomas’s concurrence in Murphy. Okay? He’s justifying it so it seems decisive, but then he taps back somewhat and he says, “Well, these are the same.” That’s not true, right? He’s right to recognize the judiciary gives full effect to the Constitution and to laws consistent with it while disregarding it.
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But disregard is not effective excision. First, the identity affirms a judicial power to change the law in a way that the judiciary does not possess the power to cut out. To repeat a point I’ve made previously, the metaphor of severing has gotten out of hand. It needs to be laid aside for good. The insistence on excision is exactly what needs to be cut out. Second, the identity of disregard with excision implies another power the judiciary does not possess.
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The power to bring in and take down applications of a law that are not before it, okay? The task before the court is to take this move that’s an opinion for the court, and decisively adopt the disregard model. Disregarding severability, all it takes is for the court to recognize their judicial power is only to disregard and order or require others to do likewise. The reordering of the law will make actual, on a case-by-case basis, the potencies for reordering that remain.
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So last part, the last sentence of the Marbury paragraph, so the third sentence. “If two laws conflict with each other, the courts must decide on the operation of each. When there’s potential for application of conflicting rules, judges should resolve the conflict by attending to the actual operation of the superior law.” Okay? Now if this understanding that I’ve laid out for you here of the judicial power is correct, there’s many implications for judicial power more generally.
(56:08)
Mostly they can carry on the way they’ve been doing, even if their practical operations make more sense. Let me just identify three things though that do need to change. One, no more gratuitous severability rulings, okay? These just open the door to destructive and usurpative inseverability rulings, right? There’s no occasion to bring those in, because you shouldn’t be asking, “Can we sever?” If you don’t ask the question, you can’t answer, “No, we can’t sever.”
(56:39)
It just doesn’t come up. It’s just disregard. That’s number one. Number two, this will just be a placeholder in some ways, but there shouldn’t be what Will Baude has called bank-shot standing. This is a way of getting standing to challenge a law that does apply to you, by saying that this provision that doesn’t apply is unconstitutional and inseverable from the one that does apply to you. So it’s a bank shot. You’re going after one that you’d otherwise have no standing to challenge.
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You’re using inseverability doctrine to say it’s really just one thing. Then you’re saying that one thing can’t be applied to me. If I’m right about how the judicial power operates, what the party’s doing is using this bank-shot standing to say that a provision shouldn’t operate on them because of some other one. That just doesn’t work if all that’s before the court, is looking at conflicting rules in a case and deciding on the operation of each. Okay?
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If the provision that applies to you can operate consistently with the Constitution, that’s it. You don’t go reaching out in something and just ask what the law might be, if they were to find something unconstitutional and then apply this other kind of reasoning. That’s no bank-shot standing. Then third, because all adjudication is as applied, the application or not of statutory provisions, is not a question of what the law is.
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In a sense that doesn’t differentiate among all its potencies, but just one that attends directly to what is to be applied by the judicial power in act is operating in a case. To conclude, the questions we started with, how does a federal court change the law? In the course of constitutional adjudication, in the case in which the court holds a federal law unconstitutional. What juridical consequences does this have?
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Laws and ordinance of reason for the common good made by one with care of the community and promulgated. The form of the law is the legislated ordinance of reason. The judicial power ensures that these legislated ordinances are rightly ordered, in connection with the other ordinance of reason legally operative in the overall Corpus Juris. The life of the law is ordered reason.
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Judges change the law by changing their mind. Ordering the law as they order parties in the exercise of their jurisdiction. In doing this, they carry out the distinctive function of a judge, as described by St. Thomas in the first article of his question on judgment. In the second part of the second part of the Summa, “Judgment properly denotes the act of a judge as such. A judge is so-called because he asserts the right,” and that is use decants.
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That’s where we get jurisdiction from. Changing the law in constitutional adjudication then is as easy or as difficult as getting a majority of the court to change its mind, and then for that change to stick. One way to accomplish this, is by anchoring the theory underlying the doctrinal change in the perennial philosophy in which one understands one own contribution. To return to Father Dewan, as the development of basic doctrines long discerned and taught.
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A development by way of deepening appreciation, as opposed to constant replacement of one worldview by another. This is how legal doctrine develops for those of us working in the Catholic intellectual tradition. Thank you.
Speaker 3 (01:00:27):
Please walk to the reception out back.