Severability as Judicial Lawmaking

Abstract:     
Severability doctrine raises fundamental questions about the judicial role in constitutional adjudication and the institutional relationship between courts and legislatures. It permits a court to excise a statute's unconstitutional clauses and applications and leave the remainder in force, effectively rewriting the statute to save it. Yet, the doctrine has long been viewed as a matter of statutory interpretation to be resolved by examining legislative intent, making it easy to obscure critical questions about the powers the doctrine grants to the judiciary.

This Article challenges the conventional wisdom about severability. First, it claims that the doctrine is part of the law of constitutional remedies, not a matter of statutory interpretation. Second, the article argues that, as a remedial doctrine, severability should not turn on legislative intent. The legislative intent test cannot sufficiently constrain a court's choice whether to sever the invalid parts of a statute, gives courts an extensive power to rewrite legislation, and distorts legislatures' incentives to comply with constitutional norms ex ante. The article concludes that the legislative intent test should be scrapped, and that courts should turn to separation of powers principles to constrain severability doctrine.

Keywords: severability, statutory interpretation, court Congress dialogue

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