Severability Doctrine and the Exercise of Judicial Review

• Published date: 01 June 2023
• DOI: http://doi.org/10.1177/10659129221082706
• Author: Garrett N. Vande Kamp
• Date: 01 June 2023

Article

Political Research Quarterly

2023, Vol. 76(2) 593–606

© The Author(s) 2022

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DOI: 10.1177/10659129221082706

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Severability Doctrine and the Exercise of

Judicial Review

Garrett N. Vande Kamp

1



Abstract

One of the most important doctrines a constitutional court must consider when exercising judicial review is severability.

If a court decides that a statutory provision is unconstitutional, it must also decide whether that provision may be severed

from the statute to allow the remainder to carry the full force of law. While the use of severability by constitutional

courts has generated substantial controversy among legal scholars, there has been scant empirical analysis evaluating

their claims of how courts employ severability doctrine. Relying on both legal and social science scholarship, I craft a

series of hypotheses about how courts use severability. I test these hypotheses on the U.S. Supreme Court’s con-

stitutional decisions on important federal statutes over the post-war period. The analysi s shows that both political and

legal considerations inf‌luence the Court’s severability doctrine, simultaneously fueling and allaying the criticisms of the

legal community.

Keywords

judicial review, severability, separation of powers, U.S. Supreme Court

Introduction

At the heart of National Federation of Independent

Business v. Sebelius (2012), the landmark U.S. Supreme

Court case on the constitutionality of the Affordable Care

Act, was the question of whether the statute could con-

stitutionally require virtually all persons in the U.S. to

purchase health insurance. An equally important, if less

salient, part of this case centered upon what would happen

to the rest of the Affordable Care Act if this individual

mandate was ruled unconstitutional. Opponents of the Act

argued that because the individual mandate was at the core

of the statute, and that Congress would have likely not

passed legislation if it were not included, the entirety of

the Act must be invalidated if the individual mandate were

ruled unconstitutional. Unusually, the Obama adminis-

tration offered a limited agreement: while most of the Act

need not be tied to the mandate, Congress would not have

passed a provision requiring companies to offer insurance

to individuals with preexisting conditions without the

mandate and thus it should also be invalidated if the

mandate were ruled unconstitutional.

This issue caused a legal f‌irestorm, triggering dozens of

amicus briefs focusing on severability rather than the

merits of the individual mandate or other provisions at

issue. Even the justices requested additional amicus briefs

specif‌ically addressing severability, signaling just how

important it was for their f‌inal decision. Eventually, the

Court found the individual mandate to be a constitutional

exercise of taxing powers, short-circuiting the need to

decide the severability of the mandate. New litigation

triggered by reforms during the Trump administration,

however, once again raised the question of severability.

After legislation removed all f‌inancial penalties for vio-

lating the individual mandate, new lawsuits claimed that a

mandate without a f‌inancial penalty could not be con-

stituted as a tax and, as a result, is unconstitutional. Judge

Reed O’Connor of the U.S. District Court for the Northern

District of Texas agreed in Texas et. al. v. U.S. et al.

(2018), further arguing that, given the Court’s decision in

National Federation that the mandate was integral to the

entirety of the law, the whole statute must be invalidated.

This invalidation was reversed by the Supreme Court in

California v. Texas (2021), though on a procedural issue

without addressing the merits of the severability claim.

1

University of Georgia, Athens, GA, USA

Corresponding Author:

Garrett N. Vande Kamp, Political Science, University of Georgia, 409

Baldwin Hall, Athens, GA 30602-0002, USA.

Email: garrettvandekamp@uga.edu