Are inseverability clauses constitutional?

• Author: Kameny, Fred

In 1987 the state legislature of Pennsylvania passed a seemingly ordinary bill with one extraordinary feature. At first glance, the bill seemed like one of those general-purpose measures to increase government pay that legislators find politically distasteful but periodically feel compelled by economic circumstance to enact. It raised the salaries of judges at all levels, of the governor and other elected state officials, of state department heads, and, beginning with the legislative session following the next election, of state legislators; it also gave the legislators, including those already serving, an unvouchered expense allowance of $12,000 a year. Pay increases for government employees are never politically popular, but this bill seemed unremarkable--although one could question the propriety of having the increase in expense allowances take effect immediately, so that the legislators were in effect voting an increase for themselves. Yet the truly extraordinary feature of the bill was not the hint of self-dealing, but rather the way in which the legislators sought to clothe the self-dealing in protective garb. For the bill contained the following language: "The provisions of this act are nonseverable. If any provision of this act or its application to any person or circumstance is held invalid, the remaining provisions or applications of this act are void." (1) The implications of this clause are inescapable: there was some question as to the constitutionality of having legislators increase their own expense allowances; (2) the legislature foresaw that a constitutional challenge was possible; and the inseverability clause ensured that if a court struck down the increase in legislators' expense allowances, the increase in judicial salaries would be sacrificed as well.

The statute was indeed challenged, by a state representative and two private citizens, in Kennedy v. Commonwealth. (3) The plaintiffs focused much of their argument on the inseverability clause: not only, they contended, did the clause give the judiciary a personal interest in upholding the law, because it tied judicial pay to the legislative expense allowances, but it also effectively denied the right of representation to those seeking to overturn the statute (because the judicial-pay-raise provision would also make lawyers reluctant to alienate judges by representing parties challenging the law), violated at least the spirit of the state constitutional provision forbidding increases or reductions in judges' and legislators' salaries during their terms of office, and was contrary to public policy because of the broad, policy-based presumption in favor of severability. (4)

The court was unpersuaded and dismissed the complaint with prejudice. (5) First, it held that the increase in expense allowances was constitutional. (6) As for the inseverability clause, the court held that the plaintiffs, who appeared pro se, had not been denied access to the courts, noting, "Petitioners are here." (7) (The court did not take up the more specific argument that the statute deprived plaintiffs of their right to representation.) More persuasively, the court dismissed the public policy argument as unripe, on the ground that the inseverability clause would be an issue only if some other provision of the statute were unconstitutional--a condition not satisfied here since the increase in expense allowances was upheld. (8) Finally, the court dismissed as moot the argument that the inseverability clause was contrary to the spirit of the constitutional ban on changes in judicial salaries. (9) Curiously, the court failed to address the plaintiffs' strongest argument: that it was unconstitutional to make a judicial salary increase hinge on the outcome of a ruling, which is what the inseverability clause was intended to do. All that the majority could bring itself to say, in a bit of understatement, was that "the motives of the Legislature could be viewed as self-serving." (10) The suggestion of impropriety provoked such indignant defensiveness on the part of the two judges who wrote separately, concurring in part and dissenting in part, that they did not deign to rebut it, merely stating that the claim of a possible conflict of interest was "an unwarranted and gratuitous insult to the integrity of the judiciary." (11)

Even those who believe that legislatures should be allowed to do essentially what they want, and that the courts should have no role in reviewing legislation at all, (12) must find the Pennsylvania statute and Kennedy difficult to swallow. Effectively, what the legislature was telling the courts was this: Give us more money and you will get more too; take away our money and we will take away yours. The Pennsylvania statute contains an example of what I will contend is invalid inseverability, Type I.

Inseverability enjoyed a rare moment of notoriety in 2001, when the Bipartisan Campaign Reform Act of 2002, (13) popularly known as McCain-Feingold, was on the verge of being passed by Congress after many years of unsuccessful attempts. Opponents of McCain-Feingold, realizing that enactment was increasingly likely and that their best chance to derail the law was in the courts, made a concerted effort to insert an inseverability clause into the bill. (14) The advocates of inseverability, who ultimately failed, had a motivation precisely opposite from that which guided the authors of the Pennsylvania statute: rather than use inseverability as a shield, to dissuade the courts from exercising their power of judicial review, the opponents of McCain-Feingold sought to use inseverability as a sword, trusting that the bill probably contained some unconstitutional provision and that the rest of the bill could be brought down along with it. Although the pro-inseverability forces disclaimed such ulterior motives and advanced several plausible policy arguments in favor of inseverability, (15) it was not lost on most observers that the very legislators who were now so strongly supporting an inseverable campaign finance bill had until recently opposed any campaign finance reform bill at all. (16) Again, I contend, an illegitimate use of inseverability, this time of Type II.

Inseverability clauses do have legitimate uses. Typically, an inseverability clause is used because the legislature is justifiably concerned that a reviewing court, in invalidating only part of a statute, might leave standing an unworkable law, or one that the legislature would not have enacted in the form that it took after the unconstitutional part was removed. Most courts will sever the unconstitutional provisions of a statute only if they believe the contrary: that the valid provisions of a statute are functionally capable of standing alone, and that the legislature would have enacted the valid provisions of the statute without the invalid ones. (17) But this is guesswork by definition, and it is understandable for legislators to fear that the courts might guess wrong. Two U.S. Supreme Court cases in particular, INS v. Chadha (18) and Buckley v. Valeo, (19) have done much to give judicial severing a bad name.

The two other uses of inseverability clauses are tactical, and questionable. In the first of these, referred to above as Type I, the inseverability clause serves an in terrorem function, as the legislature attempts to guard against judicial review altogether by making the price of invalidation too great. Leaving aside such innovative provisions as that at issue in Kennedy, an inseverability clause might provide that in case the courts invalidated any part of a wide-ranging, indispensable law (such as a budget bill), the entire law, and perhaps other, previously enacted laws, would cease to exist. The other questionable use of inseverability, a sort of poison-pill device referred to above as Type II, involves an attempt to sabotage a statute. The legislators might assume that the statute contains some unconstitutional provision already (probably a safe assumption in such constitutionally tortuous areas as campaign finance), or they might insert both an inseverability clause and a new provision whose unconstitutionality was fairly plain (such as a provision to outlaw flag burning). Such a clause can serve a dual purpose: it can ensure invalidation of the law, and at the same time legislators who oppose the bill in principle, but whose constituents favor it, can feel comfortable voting for the bill and gaining political advantage without concern that the bill might survive judicial scrutiny.

On the surface, in terrorem clauses seem especially troubling, because they represent an attempt by the legislature to prevent the judiciary from exercising a power that rightly belongs to it (whereas poison-pill clauses invite the judiciary to exercise that power). These clauses, in other words, amount to coercive threats, and the principle that people should not be subject to such threats, or should be free of the consequences of their acts if the acts are coerced, is about as basic as legal principles get. Thus, for example, a contract entered into under duress is void; (20) a will or other donative transfer executed under duress is void; (21) an involuntary confession by a criminal defendant is inadmissible; (22) and so on. (23) Intuitively, one would expect to find some limit on the legislative power to prescribe the consequences of judicial invalidation: otherwise, there would be nothing to prevent a legislature from shielding any statute from judicial review by making the consequences of invalidation sufficiently dire. But there is a more fundamental problem, one that applies to both in terrorem and poison-pill clauses: as acknowledged by the court in Kennedy, (24) statutes are generally presumed severable. (25) The judicial power to sever is not granted by the legislature but rather "flows from powers inherent in the judiciary." (26) And the presumption of severability has become...