86 U. Chi. L. Rev. Online 1 (2018)

handle is hein.journals/uchidial86 and id is 1 raw text is: 











    Severing Unconstitutional Amendments
              James Durling and E. Garrett Westt


                        INTRODUCTION
    Imagine   that   Congress  has   passed   a  comprehensive
statutory scheme that includes a tax provision. Suppose further
that a later Congress amends the scheme to repeal the tax, but
that the repeal renders other parts of the law unconstitutional.
Severability doctrine says that courts should prefer partial,
rather than facial, invalidation,1 but it also says that the
touchstone of such a decision is legislative intent.2 And so
there's a tension: on the one hand, it seems that Congress wants
to curtail the statute's scope and effect by getting rid of the tax;
on the other, the Supreme Court disfavors facial challenges.
Should the Court strike down the other parts of the scheme, or
should it reinstate the tax?
    On February 26th, twenty states filed a lawsuit against the
United States that raises just this question.3 The states allege
that the Patient Protection and Affordable Care Act4 (ACA) is
unconstitutional because    the  statute's individual mandate
exceeds Congress's powers under the Commerce and Taxing
Clauses. Of course, six years ago the Supreme Court upheld the
very same mandate under the Taxing Clause.5 But since that
decision, there has been one important revision to the ACA. On
December 22, 2017, President Donald Trump signed the Tax
Cuts and Jobs Act of 20176 (Tax Cuts Act), which eliminates the

   t Yale Law School, JD Candidates, 2018. Thanks to John Brinkerhoff, Abbe Gluck,
Ted Lee, Daryl Levinson, Scott Levy, and Mike Showalter for helpful comments and
conversations. Thanks also to the careful editors at the University of Chicago Law
Review. All errors are our own.
   1 Free Enterprise Fund u Public Company Accounting Oversight Board, 561 US
477, 508 (2010), quoting Brockett u Spokane Arcades, Inc, 472 US 491, 504 (1985).
   2 Ayotte u Planned Parenthood of Northern New England, 546 US 320, 330 (2006).
   3 See generally Complaint, Texas u United States, Docket No 4:18-cv-00167-0 (ND
Tex filed Feb 26, 2018) (Complaint).
   4 Pub L No 111-148, 124 Stat 119 (2010).
   5 National Federation of Independent Business u Sebelius, 567 US 519, 588 (2012).
   6 Pub L No 115-97, 131 Stat 2054.

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