Conditionality as Opposed to Severability

Abstract

Fowler School of Law Dean (Chapman University) and former Congressman Tom Campbell was invited by the editors of Emory Law Journal to write a response to Eric S. Fish, Severability as Conditionality, 64 EMORY L.J. 1293, 1343 (2015), regarding what courts should do when part of a statute is held unconstitutional. Fish argues that the rest of the statute should almost always be allowed to continue. Campbell rebuts that the rest should never be allowed to continue. Campbell bases his view on the fact that the Constitution requires two houses of Congress to agree, and the President to sign (or the two houses to pass the law over the President’s veto) for a text to be considered law. Cutting out part and assuming the rest is law violates that rule. It results in a set of words becoming law that was not the subject of agreement between the two houses and the President. Campbell uses statistical evidence to show the burden on Congress to re-pass laws when parts are held unconstitutional is not great. Unintended consequences of allowing parts of laws to continue when other parts are struck down include the federal campaign finance laws. Originally planned as a limit on expenditures as well as contributions, the provisions of federal law capping expenditures were struck down. The result is an outcome no one intended: the wealthy can spend whatever they wish, but candidates of modest means are effectively handicapped by the limit on how much they can raise from others. A rule of inseverability is far preferable to Fish’s modification of the more common position of severability, and to any rule of severability.

Keywords: severability, statutory construction