Volume 103

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.

Do Your Duty (!)(?) The Distribution of Power in the Appointments Clause

Judge Merrick Garland’s thwarted Supreme Court nomination has divided legal scholars over the meaning of the Appointments Clause. While some believe that the Senate and the President share the power to appoint principal officers, others contend that the President alone has the power to nominate and appoint them. To the former scholars, Article II, Section 2, enables the President to nominate whomever he or she wishes, but it also empowers the Senate to confirm or reject whomever it wishes. Accordingly, the appointment power is divided between the two, meaning it is only exercised when both branches utilize their respective and discretionary powers. To the latter scholars, the same text gives the President the sole power to nominate and to appoint, with appointment subject to the Senate’s mandatory duty to advise and decide on whether to consent. Therefore, advice and consent is a check by which the Senate prevents the President from abusing his or her appointment power, triggered by the President’s decision to nominate. This Note argues that the latter scholars are correct because the Founders’ intent, the Constitution’s text, the doctrines of separation of powers and checks and balances, and long-standing Senate practice indicate that the appointment power is solely a presidential power. For Judge Garland, this conclusion means the Senate violated its duty to hold hearings and to provide an opportunity for a vote on his nomination. More importantly for the nation, it means that the Appointments Clause requires the Senate to apply to every nominee the process that it has designed for securing its consent. Thus, the precedent established by the 114th Senate of blocking all Supreme Court nominations during presidential election years, which will likely be followed and perhaps extended to mid-term election years, contravenes the nation’s fundamental constitutional structure. By failing to perform its duty, moreover, the 114th Senate also deprived the nation of the benefits that the advice and consent process provides, such as greater accountability for the Senate’s confirmation or rejection of nominations and a more functional government. In doing so, the Senate has placed political expediency ahead of the public interest.

Entrenchment, Incrementalism, and Constitutional Collapse

Entrenchment is fundamental to law. Grand documents like the U.S. Constitution, and mundane ones like city and corporate charters, entrench themselves against change through supermajority rules and other mechanisms. Entrenchment frustrates responsiveness, but it promotes stability, a rule of law virtue extolled for centuries. It does so through a straightforward channel: Entrenched law is difficult to change. Scholars have long understood this idea, which can be called the first status quo bias of entrenchment. This Article shows that a second bias lurks: Entrenchment makes changes that do take place incremental. As entrenchment deepens, the scope of potential change to law collapses on the status quo. To restate the idea, when we entrench law, we prevent change, at least for a time, and we confine any changes that do take place to small steps. This has implications for constitutional law, especially the debate about Article V and the separation of powers, both of which shield the Constitution from change more than scholars realize. It also illuminates several questions, especially in comparative constitutional law, such as why constitutions remain unpopular after amendment. Finally, it generates a theory of constitutional failure. When voters’ preferences evolve consistently in one direction, entrenched law eventually becomes as unstable as ordinary law, only less popular. Thus, entrenchment buys neither stability nor responsiveness. Because entrenchment confines legal change to incremental steps, amendment cannot correct the problem. This recasts questions of legal design in new light, and it may explain why some constitutions endure while others collapse.

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