SCOTUSblog by Andy Schlafly 11/9/2020
This article the final entry in a symposium previewing California v. Texas.“To sever or not to sever†is not as profound a question as the immortal one asked by Hamlet, but it may decide the fate of the Affordable Care Act. Congress did not include a severability clause in the ACA, and if the individual mandate is unconstitutional, then the law can be saved only by severing its unconstitutional provision.
The president lacks the power to excise provisions from statutes, and in a 6-3 decision in Clinton v. City of New York, the Supreme Court ruled against President Bill Clinton’s use of the line-item veto that Congress had granted him in 1996. Before the court’s ruling, Clinton had repeatedly applied the line-item veto — as many state governors commonly do — in order to excise wasteful appropriations from legislation sent to his desk for signature.
It violates the Constitution’s presentment clause, the high court ruled, to allow a president to remove provisions from legislation before signing it. The presentment clause – which sets forth the specific procedures by which bills become laws — is not a clause most of us learned about in law school, but in an opinion by Justice John Paul Stevens, the court held that it must be strictly adhered to. Justice Anthony Kennedy concurred, lecturing that “[f]ailure of political will does not justify unconstitutional remedies.†No one joined his rhetorical flourish.
So if the president is prohibited from slicing and dicing legislation, why should the judiciary, the so-called “least dangerous†branch as Hamilton referred to it in Federalist No. 78, be allowed to do so? It should not. At least we can elect or defeat a president every four years. Federal judges have no such accountability.
Legislation is compromise, and the process has been famously compared with making sausage. “To retain respect for sausages and laws, one must not watch them in the making,†is a quotation attributed, perhaps apocryphally, to the political genius Otto von Bismarck. We don’t try to pick out ingredients of cooked sausage before eating it.
More:
https://www.scotusblog.com/2020/11/symposium-the-court-should-not-sever-where-the-president-cannot/#more-297622
