Administrative Severability Clauses

124 Yale L.J. 2202 (2015)

67 Pages Posted: 5 Dec 2013 Last revised: 31 Mar 2021

See all articles by Charles Tyler

Charles Tyler

George Washington University - Law School

E. Donald Elliott

Yale Law School; Antonin Scalia Lw School

Date Written: March 17, 2015

Abstract

Severability clauses can help administrative agencies minimize the damage caused by judicial review and can make the regulatory environment more efficient, participatory, and predictable. Yet agencies rarely include these clauses in their rules because courts tend to treat administrative rules with severability clauses the same as those without. Courts have treated administrative severability clauses in this way largely because they have mistakenly analogized them to severability clauses contained in statutes. While Congress routinely includes severability clauses in statutes that are drafted in distinct iterations, by different committees with legislative staff who often lack the time and expertise to consider the clauses’ potential ramifications, administrative agencies use these clauses with more care. This Article proposes a Chevron-style deference framework for administrative severability clauses. Under this framework, after a reviewing court has set aside a challenged regulatory provision, the court should defer to a promulgating agency’s opinion on severability as expressed through a severability clause, unless the remainder of the rule itself would suffer from legal defects resulting from the court’s invalidation of the challenged provisions. This framework would better promote the overarching goals of administrative law than do current judicial doctrine and agency practice.

Keywords: severability, severance, severability clause, separability clause, deference, auer, chenery, Affordable Care Act

Suggested Citation

Tyler, Charles and Elliott, E. Donald, Administrative Severability Clauses (March 17, 2015). 124 Yale L.J. 2202 (2015), Available at SSRN: https://ssrn.com/abstract=2362452 or http://dx.doi.org/10.2139/ssrn.2362452

Charles Tyler (Contact Author)

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States

E. Donald Elliott

Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
202 256-4149 (Phone)

Antonin Scalia Lw School ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

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