Stephen I. Vladeck *
Writing for the 1966 volume of the Supreme Court Review, Professor Alex Bickel was hardly bashful in his criticism of the Supreme Court’s disposition of three high-profile cases from the preceding Term, each of which had raised fundamental constitutional questions of first impression about the newly enacted Voting Rights Act of 1965. Although his objections to the Court’s decisions in Harper v. Virginia Board of Elections and Katzenbach v. Morgan went to the merits, his real frustration with Chief Justice Warren’s opinion for the Court in South Carolina v. Katzenbach, which upheld several of the Voting Rights Act’s central provisions as valid exercises of Congress’s power to enforce the Fifteenth Amendment, was that it reached the merits in the first place.
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* Professor of Law and Associate Dean for Scholarship, American University Washington College of Law. J.D., 2004, Yale Law School; B.A., 2001, Amherst College. My thanks to Kevin Walsh for inviting me to participate in the 2011 Allen Chair Symposium for which this essay was prepared, and to Aminah Qureshi and the staff of the University of Richmond Law Review for their patience. Although I co-authored the Brief of Amici Curiae Professors of Federal Jurisdiction in Support of Appellant in Virginia ex rel. Cuccinelli v. Sebelius, 656 F.3d 253 (4th Cir. 2011), which argued against Virginia’s standing to challenge the constitutionality of the ACA (and from which some of the arguments offered herein have been derived), the views expressed in this essay are mine alone.
Tobias A. Dorsey *
When I was asked to speak about severability at the 2011 Allen Chair Symposium, I wasn’t sure I should, or even that I could. But the more I thought about it the more I realized I might be a good person for the task. First of all, I am not a scholar. I am a practitioner. I spent ten years working for Congress in the nonpartisan Office of Legislative Counsel of the House of Representatives. That means I spent a lot of time working with policymakers in Congress, helping them think through their policies and turn them into written proposals. I have advised clients about severability hundreds of times.
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* Special Counsel of the United States Sentencing Commission and a former Assistant Counsel in the Office of the Legislative Counsel of the U.S. House of Representatives. J.D., 1993, UCLA School of Law; B.A., 1989, Cornell University. These remarks were originally presented as a speech at the 2011 Allen Chair Symposium—“Everything But the Merits” presented by the University of Richmond Law Review
Robert S. Claiborne
Virginia’s challenges to the Patient Protection and Affordable Care Act (“ACA”), via its minimum essential coverage provision, or individual mandate, have drawn both criticism and praise as modern invocations of nullification. The distinct doctrine of nullification entails a legal process exceeding that of a merely litigious challenge to federal law or a vocal protest from a state legislature. Its exercise by a state purportedly renders a targeted federal law unconstitutional and thus null, void, and of no effect within the respective state’s borders. At nullification’s core are the premises that the Supreme Court does not have final authority to interpret the Constitution in cases and controversies arising between a state and the federal government and that an individual state, as a party to the Constitution, has ultimate authority to interpret the compact as applied to constitutional disputes arising with the federal government.
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