Volume 62, Issue 6, 1495-1526
Courts legislate when they engage in “severability analysis,” allowing part of a law to continue in force after having struck down other parts as unconstitutional. This is flawed for the same reason that the legislative veto and the executive line-item veto are flawed. All involve creating a legislative outcome without the joint approval of both houses and the executive. The practice derives from an analogy to contract enforcement, where a court will try to preserve part of a contract when the rest is unenforceable. However, the analogy is imperfect because Congress or the state legislature remains in a position to pass a new law, unlike the parties to a contract who might not be in a position to create a new bargain.
No appeal to convenience should allow severability practice to continue, any more than it would have allowed the legislative veto to continue after INS v. Chadha. It is more respectful of a co-equal branch to invalidate an entire act than to create a result that was not passed by the legislature or signed by the executive. Even in the presence of a severability clause, it is not reasonable to infer that the legislature considered all possible permutations of a bill and approved them all, accepting that a court might strike down some clauses while allowing others to stand. Severability analysis has created systems the legislature never intended. The examples of campaign finance in Buckley v. Valeo and Sarbanes-Oxley last term in Free Enterprise Fund v. Public Company Accounting Oversight Board, are used to illustrate. Accordingly, when holding a provision of an act unconstitutional a reviewing court should strike down the entire act and allow the legislative and executive branches to craft whatever alternative they wish to adopt. This Article is the first commentary to call for the entire abolition, rather than some modification, of the severability process.