Severability Analysis

The Supreme Court’s holding today that a portion of PAPSA (The Professional and Amateur Sports Protection Act) was unconstitutional under the Court’s anti-commandeering provisions was not a surprise. But the Court’s conclusion that the entire statute is invalid because the unconstitutional portion cannot be severed from the remainder was unexpected (to me anyway) because I think that conclusion is mistaken. I will concede that PAPSA was a deeply flawed statute as a matter of law, as I fail to see why sports gambling is OK so long as it only happens in Nevada. But still.

I think Justice Thomas was correct in saying (in his concurring opinion) that the Court should rethink the way in which sever ability is approached when Congress has not addressed the matter. We would be better off with a default rule stating that unconstitutional parts of a statute ARE severable unless Congress says the opposite, which would then provide a clear backdrop for legislation. The opposite default rule would still be better than the current ad-hoc approach.

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1 Response

  1. Brett Bellmore says:

    I favor non-severability. Legislation is frequently a compromise, where one part of the law would not have passed without another. Striking down part of a law produced a law the legislature did not enact, and often would not have enacted.

    I can see an argument that the Supreme court might be reluctant to strike down the entirety of large bills if only a small part was unconstitutional, and thus be tempted to let ‘minor’ unconstitutionalities pass. Indeed, they’ve arguably gone far down that road already.

    I can also see the argument that, without severability, Congress might be more careful in drafting legislation, and perhaps stop producing omnibus monsters.

    But the deciding factor for me, is that there’s no constitutional basis for the Court to be editing legislation.