Beyond Severability

Abstract

Severability is a wrecking ball. Even the most cautious use of this doctrine demolishes statutes in contravention of legislative intent and without adequate justification. It does so through the imposition of an artificially restrictive framework: one that requires that courts respond to a statute’s constitutional flaw by disregarding that statute either in whole or in part. In the last few years alone, this framework has flattened the Voting Rights Act, threatened the Bankruptcy Code, and nearly toppled the Affordable Care Act. Yet courts apply severability reflexively, never demanding justification for its destructive treatment. Scholars, meanwhile, assiduously debate the particulars of the severability rules without questioning whether those rules should apply in the first place. This Article, the first to insist that severability justify its prominent position among the tools of statutory construction, concludes that it should be abolished. Courts should replace it with a fundamentally broader inquiry into, first, the interpretations of a constitutionally defective statute that would diffuse its constitutional defects, and, second, which among these options the legislature would prefer.

Keywords: statutory construction, statutory interpretation, legislation, judicial review, judicial restraint, legislative intent, remedies, remedy, severable, severability, Affordable Care Act, Shelby County, Voting Rights Act, Booker