Severability First Principles

54 Pages Posted: 27 Mar 2022 Last revised: 30 Mar 2022

See all articles by William Baude

William Baude

University of Chicago - Law School

Date Written: March 22, 2022

Abstract

The Supreme Court has decided a number of cases involving severability in the last decade, from NFIB v. Sebelius and Murphy v. NCAA to Seila Law v. CFPB, Barr v. AAPC, United States v. Arthrex, California v. Texas and Collins v. Yellen. The analysis has not been consistent, the Justices have not been able to agree, and the results have not been intuitive. Some of the Justices have proposed a revisionist approach, but they too have been unable to agree on what it requires.

This article proposes a return to first principles. Severability is a question of what the law is. Severability also includes two principles of constitutional law: that judges should enforce the law, and that the Constitution displaces ordinary law that is repugnant to it. And it also includes principles of non-constitutional law: that validly enacted statutes are law if they are not repugnant to the Constitution, that unenacted hopes and dreams are not, and that Congress may legislate for contingencies.

Much of the time, these principles lead to a simple bottom line: effectively complete severability, rebutted only by an inseverability clause or something else with the force of law. There are also harder cases where the bottom line is not so simple, but where the first principles of severability will nonetheless lead the way – the relevance of unconstitutional removal restrictions, the nonconstitutional law that re-solves unconstitutional combinations, and the relevance of severability to standing and other procedural questions.

Keywords: severability, constitution, constitutional law, statutory interpretation, ultra vires, standing

Suggested Citation

Baude, William, Severability First Principles (March 22, 2022). Virginia Law Review, Vol. 109, 2023 Forthcoming, Available at SSRN: https://ssrn.com/abstract=4064156 or http://dx.doi.org/10.2139/ssrn.4064156

William Baude (Contact Author)

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
688
Abstract Views
1,438
rank
52,885
PlumX Metrics