Statutory interdependence in severability analysis.

Author:Ezzell, Rachel J.

According to conventional wisdom, when a court rules a statutory provision unconstitutional, it must sever that provision or strike down the entire statute. This understanding is incomplete. In practice, courts may engage in compound severance: invalidating additional, otherwise constitutional provisions of the statute without striking down the entire statute. They reason that the degree of interrelation between those provisions is so significant that severance of one compels severance of the other. As a result, a subset of the statute remains law. The power to craft such subsets raises constitutional concerns, and yet the jurisprudence concerning statutory interdependence is inconsistent and unclear.

Courts analyze provisions for interdependence in three distinct ways: by divining congressional purpose, speculating the terms of the legislative bargain, and searching for textual evidence of congressional intent. Greater predictability in this area would alleviate constitutional concerns and better ensure democratic accountability. This Note argues for adoption of a "qualified clear statement rule" in which courts only find related provisions interdependent either when Congress has provided a clear statement to that effect or when allowing a related provision to have effect would result in an objectively irrational law. It then applies this rule to resolve a circuit split concerning severability of the Food and Drug Modernization Act. The qualified clear statement rule not only is consistent with the Court's severability test but also would provide better guidance to courts evaluating provisions for statutory interdependence as well as limit instances of judicial overreach.

TABLE OF CONTENTS INTRODUCTION I. THE TEST FOR STATUTORY INTERDEPENDENCE II. CHALLENGES IN APPLYING THE TEST A. Guidance on Congressional Intent 1. Imaginative Reconstruction 2. Unanswered Questions B. Application in the Lower Courts 1. The Purpose Approach 2. The Bargain Approach 3. The Textual Approach 4. The Three Approaches Compared III. DEFINING STATUTORY INTERDEPENDENCE A. A Qualified Clear Statement Rule 1. Clear Statement Requirement 2. Qualification for Objectively Irrational Results B. The Rule Applied C. Addressing Counterarguments CONCLUSION INTRODUCTION

When a court rules a statutory provision in a complex piece of legislation unconstitutional, it must decide whether to retain or invalidate the remaining provisions of the statute. Severability doctrine governs this determination/While severability of statutes is often discussed as an all-or-nothing proposition, with commentators focusing on whether statutory remainders should be saved or struck in their entirety, (2) there are, in fact, three possible outcomes. First, a court can sever only the unconstitutional provision, which I call "simple severance." Second, it can sever the unconstitutional provision along with some constitutional provisions but without striking down the entire statute, which I call "compound severance." In each of these two outcomes, a court allows some statutory remainder to have legal effect. Finally, it can strike down the entire statute, which I call "total invalidation." (3) The Supreme Court's test presumes that provisions are severable, meaning that normally a court should simply excise the unconstitutional provision and leave the rest of the statute intact. (4) This presumption of simple severability can be rebutted by a finding of statutory interdependence--that is, a finding that the relationship between two or more statutory provisions is so significant that severance of one provision compels severance of the other. (5)

The Court has indicated that statutory interdependence exists in two circumstances. The first is when Congress intended certain provisions to be inseverable from each other. (6) The second is when certain provisions are legally inoperable without the unconstitutional provision. (7) Assuming that Congress would not have intended to enact a legally inoperable statute, the two circumstances necessarily overlap. (8) Partly for this reason, the Court has stated that congressional intent is the primary focus of severability and statutory-interdependence analysis. (9)

Lower courts, however, have struggled in applying the congressional-intent inquiry to statutory interdependence. Despite the considerable inconsistency in this area, three basic approaches among lower courts have emerged. Some adopt a purpose-centered approach that asks, "What might Congress have wanted?" Some focus on the legislative bargain and ask, "What could Congress have passed?" And others follow something akin to a textual approach that asks, "What textual evidence did Congress provide about the topic?" Because the answers to these questions do not always point in the same direction, the current congressional-intent inquiry produces divergent results. (10)

The confusion surrounding statutory interdependence is particularly problematic because of the constitutional anxieties that stem from compound severance. Unlike total invalidation, when a court engages in simple or compound severance, a court is preserving a subset of a law that arguably did not satisfy Article I's bicameralism and presentment requirement. (11) Because some subsets can function quite differently than the original statute, this practice can be akin to creating a new law. (12) But unlike simple severance, when a court engages in compound severance, it goes beyond merely obeying the demands of the Constitution to usurp constitutionally infirm provisions, (13) and instead nullifies provisions that are themselves constitutional. With compound severance, a different authority empowers a court to nullify the additional provisions. Vesting in courts this sort of lawmaking power to craft what law remains raises serious separation-of-powers concerns. (14)

One justification for courts' power to engage in compound severance is that doing so is often necessary to fulfill the wishes of the legislature. (15) This sort of agency argument deserves consideration, but in practice its utility is undermined by the confusion surrounding the severability test's congressional-intent inquiry. (16) While some areas of the law benefit from the added flexibility that attends ambiguous legal tests, this Note contends that statutory interdependence does not. In this area, a clear statement rule would encourage legislators to expressly communicate their intent with respect to the interdependence of statutory provisions. This, in turn, would allow courts to rely on legislators' express intention when making determinations of statutory interdependence. (17)

This Note argues that courts should only invalidate constitutional provisions of a statute--whether by compound severance or total invalidation--in two relatively narrow circumstances. The first is when legislators insert a clear statement declaring statutory interdependence. The second is when no rational legislator would have wanted to retain the provision without the unconstitutional provision. This approach would substantially strengthen the existing presumption favoring simple severance and would result in fewer instances of compound severance and total invalidation. I call this approach to severability analysis the "qualified clear statement rule."

This Note proceeds in three parts. Part I briefly reviews the test for severability and statutory interdependence. Part II explains the difficulties in applying the test and identifies the inconsistent results that have followed from courts' discordant approaches to statutory interdependence. Part III contends that a qualified clear statement rule would benefit courts and legislators, alleviate constitutional concerns, and preserve democratic accountability.


    To determine whether simple severance, compound severance, or total invalidation is appropriate, courts engage in severability analysis. The Supreme Court set forth its modern severability framework in Alaska Airlines, Inc. v. Brock. (18) Alaska Airlines instructs courts to presume that unconstitutional provisions are severable from statutes, so this framework is akin to a presumption of simple severability. (19) This presumption can be rebutted by a finding of statutory interdependence. Statutory interdependence exists between two or more provisions when their relationship is so significant that severance of one compels severance of the other.

    Alaska Airlines provides lower courts with a two-prong test for statutory interdependence. (20) The first prong is an inquiry into congressional intent. (21) A court must determine whether Congress would have enacted the other provisions in the statute without the unconstitutional provision. (22) Because of the presumption of simple severability, a court should not invalidate other provisions without some sort of evidence. Sources of evidence could include an inseverability clause, an inference from the structure of the statute, or legislative history. (23) If statutory interdependence exists between only some provisions, compound severance will result. (24) If statutory interdependence exists between all provisions, total invalidation will result. (25)

    The second prong is an inquiry into legal operability. Even if a court determines that Congress intended to keep the other provisions without the unconstitutional provision, a court must still consider whether the remaining provisions can "fully operat[e] as a law." (26) If they cannot, then they too should be struck, resulting in either compound severance or total invalidation. (27) Because Alaska Airlines notes that "[t]he more relevant inquiry in evaluating severability is whether the statute will function in a manner consistent with the intent of Congress," (28) remaining provisions that are struck on grounds of legal inoperability could also be described as having been struck because Congress would not have enacted them...

To continue reading