Beyond Severability

Severability is a wrecking ball. Even the most cautious use of this doctrine demolishes statutes in contravention of legislative intent and without adequate justification. It does so through the imposition of an artificially restrictive framework: one that requires that courts respond to a statute’s constitutional flaw by disregarding that statute either in whole or in part. In the last few years alone, this framework has flattened the Voting Rights Act, threatened the Bankruptcy Code, and nearly toppled the Affordable Care Act. Yet courts apply severability reflexively, never demanding justification for its destructive treatment. Scholars, meanwhile, assiduously debate the particulars of the severability rules without questioning whether those rules should apply in the first place. This Article, insisting that severability justify its prominent position among the tools of statutory construction, concludes that it should be abolished. Courts should replace it with a fundamentally broader inquiry into, first, the constructions of a constitutionally defective statute that would diffuse its constitutional defects, and, second, which among these options the legislature would prefer. In making the case that the severability framework should be retired and replaced, this Article proceeds in three parts. Part I situates the severability framework in contemporary case law and the scholarly literature. In so doing, it reveals that this framework tends to enjoy the unquestioning acceptance of both courts and scholars, who, at best, cite vague and undertheorized principles of judicial restraint in support. Part II explores the constraining effect that severability has on the courts and the statutes they are charged with construing. On the judicial branch, severability imposes a restrictive structure that prohibits courts from relying on a host of otherwise permissible approaches to statutory construction. On the legislature’s work, it imposes a disruptive regime that generates doctrinal confusion and stifles legislative intent. Part III insists that this aggressive regime justify its existence and effects. Concluding that it cannot, this Article closes with a proposal for reform. The proposed regime would ensure greater fidelity to legislative intent by removing severability’s artificial constraints and, in so doing, avoid its destructive effects