Situational Severability

Severability doctrine can level an entire statute based on a single unconstitutional provision or application. Yet scant attention has been paid to the contexts in which the federal courts address severability. The courts assume that they can address severability whenever they confront a partially invalid law and that they can apply the same standard (calling for a wide-ranging search for the legislature’s likely intent) in all cases.

This unitary approach is problematic because it ignores that courts address severability in different contexts, which raise their own unique concerns. As a result, courts have answered severability questions in ways that violate the rules of Article III standing and the separation of powers. For instance, they have addressed severability at the jurisdictional stage of adjudication to determine a litigant’s standing—even though doing so runs counter to the principle that jurisdictional questions should be kept distinct from those concerning the rights and duties of the parties. And courts have deployed severability doctrine at the merits stage to identify what rights the legislature has authorized a litigant to assert—even though the severability standard gives short shrift to the principle of legislative supremacy that animates the courts’ general, text-bound approach to determining the statutory rights available to litigants. Moreover, courts have applied severability doctrine after resolution of a case to determine whether and how other parts of a partially invalid law will apply in the future—even though doing so violates basic Article III standing principles.

In offering the first comprehensive account of the ways in which courts apply severability doctrine, this Article illuminates these deficiencies. It also proposes a new, situation-sensitive approach to severability that would correct them. In short, this Article proposes that severability doctrine should be situational—just like severability itself.