Beyond Severability

• Author: Lisa Marshall Manheim
• Position: Assistant Professor, University of Washington School of Law
• Pages: 1833-1892

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1833

Beyond Severability

Lisa Marshall Manheim

ABSTRACT: Severability is a wrecking ball. Even the most cautious use of

this doctrine demolishes statutes in contravention of legislative intent and

without adequate justification. It does so through the imposition of an

artificially restrictive framework: one that requires that courts respond to a

statute’s constitutional flaw by disregarding that statute either in whole or in

part. In the last few years alone, this framework has flattened the Voting

Rights Act, threatened the Bankruptcy Code, and nearly toppled the

Affordable Care Act. Yet courts apply severability reflexively, never

demanding justification for its destructive treatment. Scholars, meanwhile,

assiduously debate the particulars of the severability rules without questioning

whether those rules should apply in the first place. This Article, insisting that

severability justify its prominent position among the tools of statutory

construction, concludes that it should be abolished. Courts should replace it

with a fundamentally broader inquiry into, first, the constructions of a

constitutionally defective statute that would diffuse its constitutional defects,

and, second, which among these options the legislature would prefer.

 Assistant Professor, University of Washington School of Law. I am indebted to those who

have offered insights in furtherance of this project, including Kate Andrias, Eric Berger, Ryan

Calo, Eric Fish, Brianne Gorod, Sanne Knudsen, Anita Krug, Shannon Weeks McCormack,

Elizabeth Porter, Zahr Said, Kathryn Watts, and David Ziff, as well as the participants at the Seattle

Junior Faculty Forum. Grateful acknowledgement is due to Dane Westermeyer, Thomas Miller,

and the research librarians at the Gallagher Law Library for outstanding research assistance.

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1834 IOWA LAW REVIEW [Vol. 101:1833

I. INTRODUCTION ........................................................................... 1835

II. SEVERABILITY AS A BLITHELY ACCEPTED TOOL ........................... 1839

A. THE UNQUESTIONING ACCEPTANCE OF THE SEVERABILITY

FRAMEWORK BY COURTS AND SCHOLARS ................................ 1841

B. THE APPEAL TO JUDICIAL RESTRAINT THAT COURTS AND

SCHOLARS OFFER IN SUPPORT ............................................... 1845

III. SEVERABILITY AS A DESTRUCTIVE FORCE ..................................... 1850

A. LEGISLATIVE INTENT: AN UNACKNOWLEDGED CASUALTY OF

SEVERABILITY’S RESTRICTIVE FRAMEWORK ............................. 1851

1. Construing a statute in a way that expands its

reach ............................................................................. 1851

2. Disregarding (or otherwise altering) a portion of the

statute that is not considered to be the most immediate

source of the unconstitutionality ............................... 1853

3. Treating some portion of the statute as having a

nonstandard meaning ................................................. 1856

4. Construing or applying the statute in a way that gives

the court too much “editorial freedom” ................... 1857

5. Engaging in “application severability” ...................... 1860

B. STATUTORY DAMAGE: HOW SEVERABILITY’S DISREGARD OF

LEGISLATIVE INTENT WREAKS HAVOC ON THE LAW ................ 1866

IV. SEVERABILITY AS AN UNJUSTIFIED DOCTRINE ............................. 1872

A. THE LACK OF JUSTIFICATION FOR SEVERABILITY’S DESTRUCTIVE

EFFECTS ................................................................................ 1872

B. A PROPOSAL FOR A NEW FRAMEWORK .................................... 1885

V. CONCLUSION .............................................................................. 1891

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2016] BEYOND SEVERABILITY 1835

I. INTRODUCTION

In one of the most consequential cases heard by the Roberts Court—

National Federation of Independent Business v. Sebelius1—four justices in dissent

attacked not only the specific outcome reached by the majority, but the very

approach those justices took to their judicial role. Accusing the majority of

“vast judicial overreaching,”2 the four argued that the Court had more than

simply erred; it had engaged in “judicial usurpation.”3 What, according to the

dissent, was the nature of this judicial crime? It was construing the Affordable

Care Act in a manner that permitted most of the statute to continue in

operation. More specifically, it was the majority’s application of the so-c alled

“severability” doctrine—a framework for analysis requiring a court to

disregard an unconstitutional statute in whole or in part—that triggered the

impassioned attack. What, then, was the dissent’s preferred, more judicially

restrained alternative? It was to strike down the entire Act. According to the

dissent, complete invalidation of the Affordable Care Act was the only

response consistent with the values that should guide a court engaging with a

congressionally enacted statute: “caution,” “minimalism,” and “judicial

modesty.”4

The tension is startling. On the one hand are calls for judicial restraint

and modesty; on the other, a willingness to reach conclusions about statutes

that destroy their operation. Despite the inherent friction in the dissent’s

position, attempts by the majority in National Federation to defend its opinion

against these attacks fell flat—or, at least, they lacked the rhetorical power

churning through the dissent. This was not due to oversight or neglect by the

five in the majority. It turns out it is surprisingly difficult to explain why taking

a more flexible approach to a constitutionally defective statute might not be,

in the words of the dissent, “a more extreme exercise of the judicial power

than striking the whole statute.”5 It is similarly difficult to justify why a court,

when engaging in a more accommodating form of severability analysis, is not

impermissibly “impos[ing] on the Nation, by the Court’s decree, its own new

statutory regime, consisting of policies, risks, and duties that Congress did not

enact.”6 To the contrary, as soon as one accepts that the “severability”

framework controls, it proves extraordinarily difficult to resist accusations like

those lodged by the National Federation dissent. Understanding the

fundamental error of the criticism—and of the National Federation dissent—

therefore requires taking a step back: asking whether “severability” should

apply at all.

1. Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012).

2. Id. at 2676 (joint opinion of Scalia, Kennedy, Thomas, and Alito, JJ., dissenting).

3. Id. at 2668.

4. Id. at 2676.

5. Id. at 2668.

6. Id.