Severability, Inseverability, and the Rule of Law

Abstract:     
Severability doctrine is intimately connected to a number of critical issues at the heart of the Constitution's separation of powers, including the debates over competing paradigms of statutory interpretation and interpretive practices (e.g., textualism, dynamic statutory interpretation, the use of legislative history, public choice theory); the appropriate scope of judicial review; non-delegation; and key elements of the Article III jurisdictional requirements. Yet despite its centrality to the balance of powers between courts and the lawmaking branches, severability doctrine has never emerged as a topic of sustained theoretical inquiry. This is a fundamentally troubling oversight.

Using the McCain-Feingold campaign finance reform legislation as a framing device, I argue that the Supreme Court's current severability jurisprudence is long outdated and that it fails to account for the constitutional requirements within which it must be crafted and the more prudential concerns that ought to animate it. In contrast to current doctrine, which treats severability and inseverability clauses as giving rise only to a rebuttable presumption and relies entirely on textually-extrinsic sources to guide severability determinations, I contend that, when confronted with an unambiguous legislative directive to either sever or entirely invalidate a statute, federal courts are bound by structural and substantive constitutional norms to give full effect to these statutory provisions. When Congress fails to address severability, principles of judicial restraint point toward holding statutes severable in the absence of a countervailing clear statement.

With McCain-Feingold currently before the Supreme Court - and with a sharp division over severability among the special panel's judges - the Justices now have a golden opportunity to correct eighty years of fundamentally misguided doctrinal development.

Keywords: severability, inseverability, separation of powers, McCain-Feingold, Bipartisan Campaign Reform Act, BCRA, statutory interpretation, legislative history, public choice, textualism, dynamic statutory interpretation, dynamic interpretation, judicial review, campaign finance, campaign finance reform, clear statement, constitutional, unconstitutional, Article I, Article III, jurisdiction, legislation, legislative intent, interpretation, statutory interpretation, statutory construction, legislative deal, soft money, hard money, contribution limit, rule of law

Accepted Paper Series