The Application of the Severability Doctrine to Tax: Revenue-Raising as Necessary to Reconciliation.

When Congress uses the reconciliation process to pass legislation, it limits its own power to consider proposals that surpass a stated revenue threshold. In recent years, all revenue-raising taxes included in reconciliation bills have been necessary to satisfy a binding congressional threshold. This Article examines what should happen if such a tax were declared unconstitutional. As a result of Congress's self-imposed rule, the Supreme Court would not only consider the constitutionality of the tax but also the requirements of the severability doctrine whereby courts determine if they can strike parts of a statute without striking the statute in its entirety. Under established severability doctrine, legislative intent is a necessary inquiry for determining whether an unconstitutional provision can be severed. If the Court declares unconstitutional a tax passed as part of reconciliation, either the Court recognizes that the elimination of a revenue-raising provision nullifies the legislative agreement necessary for the bill's passage and the entire statute is struck, or the Court fundamentally changes the doctrine of severability by cleaving legislative intent from its consideration of whether or not to sever. Consequently, if the Court does not accept that tax is somehow different than other areas of law, also known as tax exceptionalism, tax would drive the development of the severability doctrine or else large reconciliation statutes would be at risk. Moore v. United States, decided in 2024, provides the opportunity to situate tax increases within the budget reconciliation process despite the Court deciding the case narrowly in favor of the government. Questions of the constitutionality of reconciliation taxes are likely to be before the Court again, and severability analysis will be critical if the Court declares such a tax unconstitutional. [ABSTRACT FROM AUTHOR]