Severability as Judicial Lawmaking
Severability as Judicial Lawmaking
David H. Gans, 76 Geo. Wash. L. Rev. 639 (2008)
My argument proceeds as follows: Part I discusses the basics of the severability doctrine, examining its purpose and function and the reasons that courts should and do have the power to sever a statute’s invalid parts and applications. Part II analyzes the doctrine’s proper characterization, arguing that the doctrine is a remedial one, not an exercise in statutory interpretation. For that reason, the legislative-intent test has to be defended on the merits and cannot be treated as the correct test simply because severability is an act of statutory construction. Part III considers the merits of the legislative-intent test and argues that it should be scrapped because it regularly enmeshes courts in policy work for which they are unequipped, and reduces legislatures’ incentives to comply with constitutional mandates ex ante. Part IV moves from critique to reconstruction, explaining how to craft a better severability doctrine. It urges that severability doctrine shift its focus from intent to the degree and kind of rewriting required and offers a set of questions for courts to consider in deciding whether severance amounts to impermissible rewriting or not.