When the Supreme Court holds that a particular section within a statute is invalid or unenforceable, it typically performs a severability analysis to determine whether the rest of that statute must be declared invalid or enjoined, as well.  As Justice Thomas laments in his concurrence in Murphy v. NCAA, the Court’s severability doctrine “requires judges to determine what Congress would have intended had it known that part of its statute was unconstitutional.”  When applying this doctrine in cases concerning administrative agencies’ authority, the Court appears insufficiently attentive to constitutional checks-and-balances concerns.  The Court generally presumes that Congress would have preferred to preserve as much of a federal regulatory scheme as possible, rather than treating checks-and-balances concerns as fundamentally important to that scheme.  Over time, this systematically leads to unintended enhancement of the authority of the Executive Branch in general, and the President in particular.  Due to the realities of the legislative process and the President’s veto power, such continuing enlargement of executive authority cannot easily be reversed, regardless of Congress’ actual policy preferences. 

INS v. Chadha is one of the most important examples of the Court’s minimization of separation-of-powers concerns in conducting its severability analysis.  Congress had enacted a law authorizing the Attorney General to not only suspend deportation of deportable aliens, but adjust their status to lawful permanent residents.  The Attorney General was required to report such decisions to Congress.  If either the House or the Senate enacted a resolution prior to the end of its next session disapproving the Attorney General’s decision, then the government had to deport the alien.

The Supreme Court held that this one-house legislative veto was unconstitutional.  On the question of the proper remedy, Congress itself had argued to the Court that, “if the provision for the one-House veto is held unconstitutional, all of [the challenged statute] must fall.”  In other words, Congress had conferred broad authority on the Attorney General to grant lawful permanent resident status with the understanding that each chamber of Congress would be able to oversee and reject exercises of that power.  By invalidating that congressional check while leaving the underlying grant of discretion to the Attorney General in place, the Court enhanced the Executive Branch’s authority at the expense of Congress.

Pointing to the Immigration & Naturalization Act’s (“INA”) severability provision, the Court held that the one-House legislative veto was severable.  In reaching that conclusion, the Court did not seriously consider whether the enacting Congress actually would have granted the Attorney General authority to suspend deportations and grant lawful permanent resident status without the possibility of congressional nullification.  Nor did it grapple with the checks-and-balances implications of allowing the Executive Branch to retain authority and discretion while removing congressional review of that power.  By assuming that Congress would have wished to delegate the same authority to the Executive Branch even without the possibility of direct congressional review and constraint, the Court effectively placed no value on balance-of-power considerations.   

Rather than simply returning the legislative and executive branches to the status quo ex ante, the Court tilted the system sharply in favor of the executive branch.  Thus, the President may be expected to wield the veto power to avoid losing such fortuitously enhanced authority, thereby preventing simple majorities in Congress from reasserting their will.  Even putting aside the possibility of presidential veto, Congress’ failure to amend the underlying law cannot be deemed an endorsement of, or acquiescence in, the Court’s ruling. Rather, the vetogates strewn throughout the legislative process can prevent the adoption of policies that a majority of both chambers would support. 

Moreover, by leaving the underlying provisions governing the suspension-of-deportation process in place, the Court reduced the issue’s urgency.  In the absence of executive pressure, a powerful outside lobby, or other major external impetus, it can be difficult for even popular measures to make it onto Congress’ agenda and through the legislative process. Invalidating the entire suspension-of-deportation provision—or potentially an even broader segment of the INA—would have provoked legislative action, inducing Congress to adopt a replacement scheme that actually reflected its will and struck an appropriate balance of power between the branches.

Considered on its own, Chadha might be dismissed as dealing with a narrow issue that doesn’t materially impact the relative authority of the legislative and executive branches.  Congress had adopted hundreds of legislative veto provisions, however, appending them to a wide variety of delegations of authority to executive agencies.  For example, when Congress deregulated the airline industry, it established an Employee Protection Program (“EPP”) to mitigate the impact on airline personnel.  The statute granted the Secretary of Labor broad authority to promulgate regulations to implement the EPP, subject to a one-House legislative veto.  In Alaska Airlines, Inc. v. Brock, the Court applied Chadha to conclude that Congress still would have delegated the same authority to the Secretary, even without the legislative veto.  For any individual statute, considered in isolation, such an analysis may be persuasive.  But if one considers the full range of laws subject to legislative veto provisions collectively—an analysis our constitutional litigation process does not facilitate—it is difficult to believe that Congress would have intended to materially alter the balance of power between the legislative and executive branches by conferring that same broad sweep of authority without the accompanying statutory checks.

More recently, the Court has been applying severability analysis to bring previously independent or otherwise insulated officials and entities more firmly within the control of the President and other Executive Branch officials.  Here too, the Court’s presumption is that Congress would have granted the same authority and discretion to a government official or entity, even if it knew that the official or entity would be subject to greater executive oversight and control.  Such reasoning appears to apply little value to constitutional checks-and-balances concerns, facilitating the aggregation of executive authority.  Again, for any individual case, that reasoning may be persuasive.  Collectively assessing the broad swath of restrictions on officers’ removal that Congress has adopted which are likely subject to invalidation, however, the Court’s assumption of congressional indifference to executive power may appear quite different. 

In Seila Law LLC v. Consumer Financial Protection Bureau, for example, the Court held that it was unconstitutional for Congress to create an independent agency, the Consumer Financial Protection Bureau (“CFPB”), headed by a single officer who could be removed by the President only “for cause” (meaning “inefficiency, neglect, or malfeasance”).  Congress had established the CFPB through the Dodd-Frank Act as an independent agency.  It had a half-billion dollar budget, “potent enforcement powers” over more than 18 federal consumer protection laws, and “extensive adjudicatory authority.”  The Court explained that, “[s]ince its inception, the CFPB has obtained over $11 billion in relief for over 25 million customers.”  It concluded that, since the agency wielded tremendous executive authority and did not fall into any historical exceptions to the President’s removal power, the Director’s protection from at-will removal was unconstitutional. 

The Court then turned to the question of the proper remedy.  It declared, “We think it clear that Congress would prefer that we use a scalpel rather than a bulldozer in curing the constitutional defect we identify today.”  Citing the Dodd-Frank Act’s severability clause, the Court held, “[T]here is nothing in the text or history of the Dodd-Frank Act that demonstrates Congress would have preferred no CFPB to a CFPB supervised by the President.”  With the stroke of a pen, the Court created a new executive agency with its head removable at will by the President.  In the name of judicial minimalism and deference to Congress, the Court enhanced the President’s authority. 

The fact that Congress established the CFPB as an independent agency strongly suggests that it did not wish to lodge such substantial authority directly in the President without restriction.  Of course, Congress’ establishment of the CFPB in the first place also demonstrates that it saw the need to enhance consumer protections.  The Court’s severability analysis places much greater weight on the need to address the immediate tangible policy problems before Congress than the more abstract, overarching checks-and-balances concern about aggrandizing executive authority.  Its ruling tilts the status quo in favor of the Executive, which can both lobby against and veto any effort to reduce this windfall of power.  And by allowing the CFPB’s day-to-day operations to continue unabated, the Court also substantially reduces any pressure on Congress to amend the Dodd-Frank Act to determine exactly how much authority it wishes to delegate to the President.

The underlying problem with the Court’s severability analysis is that it frames severability questions as a false binary.  The Court considers only whether Congress would have preferred either: (i) adopting the statute at issue without the unconstitutional provision, or (ii) rejecting the entire statutory scheme.  In most cases, neither option is the most likely reflection of reality.  When a statutory provision is unconstitutional, Congress typically would have wanted to adopt the underlying statutory scheme, but with modifications or offsets to limit the Executive Branch’s authority.  The Court, however, has no way to identify or impose the hypothetical counterfactual statute that Congress would have enacted, had it been prevented from including the constitutional infirmity in its legislation. 

By allowing modified grants of authority to the President or executive branch more broadly to remain in effect without the limits on executive power that Congress adopted, the Court creates a new statutory reality that Congress never endorsed in which it is much harder for Congress to adopt its actually-preferred alternative.  And the Court’s approach to these severability issues tends to result in the continuous expansion and aggrandizement of executive authority and discretion.  At a minimum, courts should be more attentive to these checks-and-balances concerns when performing a severability analysis.  When assessing Congress’ preferences in the course of a severability analysis, the Court should consider Congress’ hypothetical intent not only with regard to the statute immediately before it, but also at a higher level of generality, concerning grants of authority of that type more broadly.