Severing Unconstitutional Amendments

18 Pages Posted: 16 Apr 2018 Last revised: 16 May 2018

Date Written: March 30, 2018


This Essay uses the most-recent challenge to the ACA’s constitutionality to explore broader questions of severability doctrine. Twenty states recently filed suit, alleging that the recent amendments to the ACA in the Tax Cuts and Jobs Act of 2017—in particular, the repeal of the tax penalty—render the law unconstitutional under current doctrine. As a result, they argue, the entire ACA, or at least the individual mandate, should be declared unconstitutional. We disagree. Instead, we argue that (assuming that plaintiffs have standing and win on the merits) the appropriate relief is to invalidate the Tax Cuts Act’s repeal of the individual mandate penalty—that is, to effectively reinstate the tax.

The issues raised in this litigation raise broader questions about the application of severability doctrine to unconstitutional amendments. We argue that, in cases of unconstitutional amendments, courts should favor restoration to the status quo. Although our approach is seemingly counter-intuitive, this approach better suits both long-standing severability doctrine and the quasi-constitutional justifications that guide the doctrine’s development. This rule better balances the competing claims of prior and current Congresses, and it better reflects Marbury’s maxim that a “legislative act contrary to the Constitution is not law.” And applied here, this rule counsels that courts should strike the repeal of the tax penalty.

Keywords: severability, statutory interpretation, remedies, affordable care act

Suggested Citation

Durling, James and West, E. Garrett, Severing Unconstitutional Amendments (March 30, 2018). 86 U. Chi. L. Rev. Online 1 (2018), Available at SSRN:

E. Garrett West

Independent ( email )

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