The Severability Mess

I’m not concerned about Judge O’Connor’s opinion invalidating the Affordable Care Act. Appellate courts exist to correct erroneous trial court rulings. I am concerned, though, about the state of severability doctrine. Do you remember the severability analysis in Marburg v. Madison? The part where Chief Justice Marshall examined whether the rest of the Judiciary Act of 1789 could stand given that the Court was invalidating one part of that Act. Of course you don’t. Because no such analysis was done.

I think that severability should be presumed unless Congress speaks to the contrary. Given that there are many precedents on the other side, though, Congress should legislate in a general way to create this presumption for all statutes going forward.

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3 Responses

  1. Henry Cohen says:

    I agree that severability should be presumed unless Congress speaks to the contrary, but the presumption should be rebuttable. After all, whether two provisions are in the same section or different sections of a statute is somewhat arbitrary, and provisions in different sections may be so closely related that one cannot stand without the other. And what about provisions in the same section but different subsections or in different paragraphs within the same subsection? Congress should not attempt to create a rule that would remove judges’ discretion.

  2. Brett Bellmore says:

    I’m inclined to the opposite view: Severance results in a law the legislature, with exclusive power to legislate, did not enact, which the executive did not sign. It should be very strongly disfavored, except in such cases where it was explicitly provided for.

  3. Joe says:

    Long precedent matters except when it seems wrong. Seriously, the legislature acts with basic two hundred year old norms (Marbury was 1803) as understood givens. It is in effect part of the law like normal language usage unless otherwise noted or such.