Severability First Principles

*Professor of Law, Faculty Director of the Constitutional Law Institute, University of Chicago Law School. This Article benefitted from preliminary workshops at the University of Michigan Law School and University of Wisconsin Law School, and the subsequent draft benefitted from further comments by Josh Blackman, Curt Bradley, Jud Campbell, Tara Grove, John Harrison, Robert Leider, Mike Rappaport, Richard Re, Steve Sachs, Peter Salib, Mark Shawhan, Kevin Walsh, Lael Weinberger, Ilan Wurman, Sam Bray, Kian Hudson, Brian Lea, and other participants in workshops at the University of Chicago Law School and DePaul College of Law, and the Originalism Works in Progress Conference at the University of San Diego. Simon Carvalho and Sarah Leitner provided excellent research assistance. Any defects in this Article should be severed.Show More

The United States Supreme Court has decided a number of cases involving severability in the last decade, from NFIB v. Sebelius and Murphy v. NCAA to Seila Law v. CFPB, Barr v. AAPC, United States v. Arthrex, California v. Texas, and Collins v. Yellen. The analysis has not been consistent, the Justices have not been able to agree, and the results have not been intuitive. Some of the Justices have proposed a revisionist approach, but they too have been unable to agree on what it requires.

This Article proposes a return to first principles. Severability is a question of what the law is. Severability also includes two principles of constitutional law: that judges should enforce the law, and that the Constitution displaces ordinary law that is repugnant to it. And it also includes principles of non-constitutional law: that validly enacted statutes are law if they are not repugnant to the Constitution, that unenacted hopes and dreams are not, and that Congress may legislate for contingencies.

Much of the time, these principles lead to a simple bottom line: effectively complete severability, rebutted only by an inseverability clause or something else with the force of law. There are also harder cases where the bottom line is not so simple, but where the first principles of severability will nonetheless lead the way—the relevance of unconstitutional removal restrictions, the non-constitutional law that resolves unconstitutional combinations, and the relevance of severability to standing and other procedural questions.

Introduction

When part of a statute is unconstitutional, the courts engage in severability analysis. According to the cases, this analysis couples a presumption with a possible rebuttal. The presumption is one of severability: “[T]he invalid part may be dropped.”¹ 1.Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987) (quoting Buckley v. Valeo, 424 U.S. 1, 108 (1976) (per curiam)).Show More The presumption is rebutted based on either an objective analysis, asking whether “what is left is fully operative as a law,”² 2.Id. (quoting Buckley, 424 U.S. at 108).Show More or a subjective analysis, asking whether “it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not.”³ 3.Id.Show More Slightly more controversially, the same seems to be true for a single provision with constitutional and unconstitutional applications.⁴ 4.Ayotte v. Planned Parenthood of N. New Eng., 546 U.S. 320, 328–29 (2006).Show More

There have been many calls to abandon or reform severability doctrine.⁵ 5.See, e.g., Murphy v. NCAA, 138 S. Ct. 1461, 1487 (2018) (Thomas, J., concurring) (“[O]ur modern severability precedents are in tension with longstanding limits on the judicial power.”); Kevin C. Walsh, Partial Unconstitutionality, 85 N.Y.U. L. Rev. 738, 742 (2010) (calling for a “displacement-based approach”); Tom Campbell, Severability of Statutes, 62 Hastings L.J. 1495, 1497 (2011) (proposing a “complete abolition of the severability doctrine”); Lisa Marshall Manheim, Beyond Severability, 101 Iowa L. Rev. 1833, 1838 (2016) (advocating for the replacement of severability with a broader inquiry into legislative intent).Show More But there is no consensus about what the problem is or what to do instead. At least one problem, though, is methodological: the modern approach to statutory interpretation is heavily influenced by formalism generally and textualism specifically. Such judges have extra reason to be skeptical of current doctrine. They doubt the coherence or the relevance of counterfactual inquiries into legislative intent and also tend to resist the normative analysis that sometimes lies behind particular severability arguments. And severability can look uncomfortably like “rewriting” a statute, which most judges today know they are not supposed to get caught doing. So, we need an account of severability that makes formal sense.

This is a natural occasion for a return to first principles, and some have tried. Several recent articles make promising contributions,⁶ 6.Especially noteworthy are Walsh, supra note 5; John Harrison, Severability, Remedies, and Constitutional Adjudication, 83 Geo. Wash. L. Rev. 56 (2014); and Jonathan F. Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933 (2018).Show More and recent opinions by Justices Thomas and Gorsuch have attempted to synthesize them into a new revisionist account of severability.⁷ 7.See infra Section II.B.Show More But their work is incomplete. Justices Thomas and Gorsuch cannot even agree among themselves in several recent cases, and throughout they may be trying to squeeze more certainty out of the literature than it can supply. We still need a clearer account of the first principles that answer the severability problem and of what those principles do and do not imply.

Returning to first principles also requires us to determine whether severability analysis comes from the Constitution or instead from statutory interpretation or other non-constitutional law. In truth, it is both. Severability principles are a combination of both constitutional and non-constitutional law. The Constitution tells us that it displaces ordinary law that is inconsistent with it. It also tells us that judges (among others) are supposed to apply the law. But these constitutional principles are not all there is to severability. We also need to know what is the law, when some part of a statute has been found to be constitutionally repugnant? Ordinary principles of statutory interpretation fill in this answer. Federal law is what has been enacted by Congress and not otherwise displaced, including any fallback law. And, of course, any non-federal legal rules also continue to apply.

Much of the time, these principles lead to a simple bottom line: judges should enforce a statute except in the specific cases where its application is unconstitutional. But this simplicity is deceptive. The bottom line becomes more difficult to see in the case of unconstitutional combinations: when two statutory requirements are unconstitutional if taken together, which one should be disregarded? These difficult cases—more widespread than many realize—illuminate an aspect of the Constitution that has been there all along: the Constitution tells us what the law isn’t, but not always what it is. Solving the severability problem in these cases—saying what the law is—requires going beyond the text of the statute, whether formalist judges like it or not.

Other difficulties come up in the context of standing and other threshold questions. When can a plaintiff establish standing on the basis of an inseverability argument, and when can a severability argument defeat standing? These questions have proven difficult for the courts, but this time it is the difficulty that is deceptive. Once we straighten out our severability analysis, it drives us to straightforward answers in these cases.

This Article puts forward the first principles of severability and then applies them, first to the easy cases and then to the hard ones. Part I argues that severability is a question of law; that the Constitution displaces repugnant law; and that all non-repugnant law should be enforced, including fallback law such as severability and inseverability clauses. Part II describes how these principles would reframe severability doctrine, how Justices Gorsuch and Thomas have come close to restating these principles, and how the principles also clarify facial challenges and national injunctions. Part III tackles the harder cases, such as unconstitutional combinations and severability procedure.

1. Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987) (quoting Buckley v. Valeo, 424 U.S. 1, 108 (1976) (per curiam)). ↑
2. Id. (quoting Buckley, 424 U.S. at 108). ↑
3. Id. ↑
4. Ayotte v. Planned Parenthood of N. New Eng., 546 U.S. 320, 328–29 (2006). ↑
5. See, e.g., Murphy v. NCAA, 138 S. Ct. 1461, 1487 (2018) (Thomas, J., concurring) (“[O]ur modern severability precedents are in tension with longstanding limits on the judicial power.”); Kevin C. Walsh, Partial Unconstitutionality, 85 N.Y.U. L. Rev. 738, 742 (2010) (calling for a “displacement-based approach”); Tom Campbell, Severability of Statutes, 62 Hastings L.J. 1495, 1497 (2011) (proposing a “complete abolition of the severability doctrine”); Lisa Marshall Manheim, Beyond Severability, 101 Iowa L. Rev. 1833, 1838 (2016) (advocating for the replacement of severability with a broader inquiry into legislative intent). ↑
6. Especially noteworthy are Walsh, supra note 5; John Harrison, Severability, Remedies, and Constitutional Adjudication, 83 Geo. Wash. L. Rev. 56 (2014); and Jonathan F. Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933 (2018). ↑

7. See infra Section II.B. ↑