Cornell University Law School Scholarship@Cornell Law: A Digital Repository Cornell Law Faculty Publications Faculty Scholarship 3-1-2007 Fallback Law Michael C. Dorf Cornell Law School, [email protected] Follow this and additional works at: https://scholarship.law.cornell.edu/facpub Part of the Constitutional Law Commons Recommended Citation Dorf, Michael C., "Fallback Law" (2007). Cornell Law Faculty Publications. 78. https://scholarship.law.cornell.edu/facpub/78 This Article is brought to you for free and open access by the Faculty Scholarship at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Law Faculty Publications by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. COLUMBIA LAW REVIEW VOL. 107 MARCH 2007 NO. 2 ARTICLES FALLBACK LAW Michael C. Dorf* Legislatures sometimes address the risk that a court will declare all or part of a law unconstitutionalby including 'fallback" provisions that take effect on condition of such total or partial invalidation. The most common kind of fallback provision is a severability clause, which effectively creates a fallback of the original law minus its invalid provisions or applications, but fallback law can also take theform of substituteprovisions. Whether phrased in terms of severance or substitution,fallback law gives rise to serious consti- tutional and policy questions. When does a fallback cure the defects of the original provision? Should legislatures be permitted to adopt punitive fall- backs designed to coerce the courts into sustaining otherwise questionablepro- visions? Does the use of a fallback violate the legislator's duty, ifany, of independent constitutionaljudgment? What court's decision should trigger the substitution of afallbackfor the originalprovision, andfor what parties? These questions lack easy answers because fallback law operates in the midst of institutionalconflict: Upon finding a law unconstitutional,a court must do its best to implement the remaining will of the very legislature that enacted the invalid law; a legislature in craftingfallback law must do its best to anticipate how the courts will respond; yet in the American system of separa- tion of powers, each institution has at best a limited ability to predict or control how the other will respond to its work product. * Isidor & Seville Sulzbacher Professor of Law, Columbia University School of Law. I am very grateful for the helpful suggestions, comments, and questions of Richard Brooks, Sherry Colb, Cynthia Estlund, Richard Fallon, Philip Hamburger, Scott Hemphill, Thomas Lee, Cillian Metzger, Henry Monaghan, Trevor Morrison, Catherine Sharkey, Peter Strauss, and Jeremy Waldron, and for the extraordinary research assistance of Eric Chesin. I also benefited from the comments and questions of the students in my fall 2006 Seminar in Legal Scholarship and the participants in faculty workshops at Columbia Law School and Cornell Law School. My interest in this subject was first piqued by my work as an attorney for the petitioner in Coalition for Fair Lumber Imports Executive Committee v. United States, No. 05-1366, 2006 WL 3590188 (D.C. Cir. Dec. 12, 2006) (per curiam) (dismissing on jurisdictional grounds following settlement). The Introduction and Part I of this Article discuss an example drawn from that litigation. Although the academic views I state here happen to coincide with the interest of my client, all opinions expressed are entirely my own in my capacity as scholar rather than advocate. HeinOnline -- 107 Colum. L. Rev. 303 2007 COLUMBIA LAW REVIEW [Vol. 107:303 INTRODUCTION .................................................. 304 I. CAN A FALLBACK STAND ALONE? THE TAINT PROBLEM ..... 310 A. The Next Best Thing ................................ 310 B. The NAFTA Fallback and Procedural Dependence .... 313 C. Substantively Defective Original Provisions ............ 319 D. Invalid Purpose Tests ................................ 320 E. When Does Severance Cure Taint? ................... 324 II. AN ASIDE ABOUT DELEGATION ............................ 326 III. COERCIVE FALLBACKS ..................................... 327 A. California's Coercive Quasi-Fallback .................. 329 B. A Hypothetical DOMA Fallback ...................... 333 C. Is the Germaneness Test Too Permissive? ............. 336 D. Coercive Severability and Nonseverability ............. 339 IV. THE LAWMAKER'S DUTY or INDEPENDENT CONSTITUTIONAL JUDGM ENT ............................................... 342 A. Lincoln's View ....................................... 343 B. The Dialectic View ................................... 347 C. The Judicial Exclusivity View ......................... 349 D. Judicial Enforceability and Severability ................ 350 V. CRAFTING AND IMPLEMENTING FALLBACK LAW .............. 352 A . N otice ............................................... 352 B. A Hypothetical Fallback That Contradicts the Original Provision ............................................ 354 C. Limits on the Legislature's Ability to Draft Around the Notice Problem ...................................... 355 D. Which Court's Decision Should Trigger a Fallback?... 356 E. Authorizing Any Court to Trigger a Fallback ......... 359 F. As-Applied Litigation ................................. 363 G . Standing ............................................. 365 VI. THE INEVITABILITY OF SEVERABILITY ............................ 369 CONCLUSION .................................................... 371 INTRODUCTION To address the risk that a court will declare all or part of a law uncon- stitutional, legislatures sometimes include "fallback" provisions that take effect on condition of such total or partial invalidation. The attraction of fallback law is obvious. A fallback provision enables the legislature to avoid having to go back to the drawing board should a court find the law invalid. The fallback fills the legal vacuum that would otherwise exist dur- ing the time between the invalidating decision and the enactment, if any, of new, valid legislation. Fallback measures ensure that the same session of the legislature that produced the original law gets to say, in advance, what the law will be in the event that the original is subsequently invalidated. However, fallback law also has disadvantages. Fallback provisions will not always cure the original provisions they back up, and even when they HeinOnline -- 107 Colum. L. Rev. 304 2007 2007] FALLBA CK LAW do, other constitutional and practical difficulties can arise. This Article identifies those difficulties, which chiefly involve interinstitutional con- flict. Upon finding a law unconstitutional, a court must do its best to implement the remaining will of the very legislature that enacted the in- valid law,' and in crafting fallback law, a legislature must do its best to anticipate how the courts will respond. In the American system of separa- tion of powers, each institution has at best a limited ability to predict or control how the other will respond to its work product. Although no prior academic study addresses fallback law as such, the phenomenon is in fact extremely common. The most widely used kind of fallback provision is a severability clause, which provides that in the event that the original law is held partly invalid, a fallback of the original law minus the invalid provision or application will take effect.2 Less commonly, fallback law takes the form of substitute provisions, rather than merely the truncated version of the original law that a sever- ability clause produces. For example, section 274(f) of the Balanced Budget and Emergency Deficit Control Act of 1985 (also known as the Gramm-Rudman-Hollings Act) provided that in the event that certain fea- tures of the Act were held invalid, a collection of fallback provisions would go into effect.3 Having invalidated the triggering provisions, the Supreme Court in Bowsher v. Synar declared these fallback provisions 4 effective. The distinction between severability and "substitutive" fallback law is not always sharp, and in some sense, every severability provision estab- lishes a kind of substitutive fallback provision. The truncated law is not simply smaller; it is also different from the original law. That point is easy to see in a case like United States v. Booker.5 After a majority of the Supreme Court concluded that the Federal Sentencing Guidelines violated the Sixth Amendment insofar as they enhanced sentences based on facts proved to ajudge rather than ajury,6 a different 1. E.g., People v. Liberta, 474 N.E.2d 567, 578 (N.Y. 1984) (declaring portion of statute unconstitutional and stating that "[t]his court's task is to discern what course the Legislature would have chosen to follow if it had foreseen our conclusions as to" statute's unconstitutionality). Liberta is discussed below. See infra note 9 and accompanying text; infra text accompanying note 21. 2. A typical example is section 406 of the Immigration and Nationality Act, which stated: "If any particular provision of this Act, or the application thereof to any person or circumstance, is held invalid, the remainder of the Act and the application of such provision to other persons or circumstances shall not be affected thereby." Ch. 477, § 406, 66 Stat. 163, 281 (1952) (codified as amended at 8 U.S.C. § 1101 note (2000) (Separability)). This language was held controlling of the severability question in INS v. Chadha, 462 U.S. 919, 932 (1983).