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.