Severability as Conditionality

67 Pages Posted: 16 Feb 2014 Last revised: 27 Mar 2017

See all articles by Eric S. Fish

Eric S. Fish

Yale University, Law School, Students

Date Written: February 21, 2014


The Supreme Court currently operates under the premise that if it finds one part of a law unconstitutional, it can strike down other parts as well. In NFIB v. Sebelius, four justices would have exercised this power to strike down the entire Affordable Care Act on the basis of one unconstitutional provision. But it is not clear where the Court finds this power to declare laws inseverable. And that lack of clarity has created a doctrinal muddle wherein the Court applies several inconsistent tests. In this Article, I seek to clarify the scope of the inseverability power by considering several different theories of its source. Three such theories are implicit in the current judicial doctrine and academic debate about severability: (1) that it is an equitable remedial power, akin to the power to issue a civil injunction, (2) that it is a form of intentionalist statutory interpretation, wherein courts strike down further provisions of a partially unconstitutional law so as to preserve the legislators’ intentions, and (3) that it is a judicial contract remedy applied to legislative deals. The Article explores these three theories, teasing out their respective logics, and showing that they are all both implausibly broad and inconsistent with Article III of the Constitution.

The Article then develops and defends a fourth, narrower theory: that a court can declare a statute inseverable only where the legislature has made one part of the statute conditional on the continued validity of another. Such conditionality can most easily be found through explicit inseverability clauses. But it can also be found implicitly, where severing a provision would make nonsense of a statute’s language, or where otherwise valid parts of a statute cannot have legal effect or do not serve any purpose without the unconstitutional provision. The main cost of this theory is that it only permits inseverability in limited circumstances, and does not allow courts to rewrite statutes so as to avoid the perverse consequences of judicial review. The benefits are that the theory is consistent with Article III, and that it prevents judges from acting like legislators. Two further implications follow from the conditionality theory: that there must be a party with standing to challenge an inseverable provision before a federal court can strike it down; and that the proper unit of analysis for severability questions is the entire legislative code (rather than a single act or bill).

Suggested Citation

Fish, Eric S., Severability as Conditionality (February 21, 2014). 64 Emory Law Journal 1293 (2015). Available at SSRN: or

Eric S. Fish (Contact Author)

Yale University, Law School, Students ( email )

127 Wall Street
New Haven, CT 06511
United States

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