Severability Doctrine: How Much of a Statute Should Federal Courts Invalidate?

Abstract

Most statutes that violate the Constitution are only partly unconstitutional, not entirely so. Whenever a court conducting judicial review holds that part of a statute is unconstitutional, that court must determine how much of the statute to invalidate. Properly understood, this is a doctrine of judicial restraint, one that seeks to allow as much of the work-product of the democratic process to survive, but only if doing so does not usurp the role of legislators, rewriting what could have been a carefully balanced legislative bargain. While legislative intent is often manifest in a severability clause, such a provision is not necessarily dispositive. Severability doctrine is the judicial process by which judges resolve these challenges.