Why Courts Should Reject the Presumption of Severability in the Face of Intentionally Unconstitutional Legislation
Cleaning up for Congress: Why Courts Should Reject the Presumption of Severability in the Face of Intentionally Unconstitutional Legislation
C. Vered Jona, 76 Geo. Wash. L. Rev. 698 (2008)
Part I of this Note reviews the history of the Court’s severability jurisprudence, tracing the line of cases that led to the Supreme Court’s modern severability test, set forth in Alaska Airlines, Inc. v. Brock, including the presumption of severability that pervades the Court’s jurisprudence. Part II examines instances where the Court has employed a presumption of inseverability, which it has done when adjudicating challenges of statutes’ improper legislative purpose, over- breadth, and underinclusivity.
Part III argues that courts should abandon the presumption of severability– or should extend their use of the presumption of inseverability–in cases where the legislature clearly intended to pass an unconstitutional statute. This Part explores how abandoning the presumption complements judicial restraint, separation of powers, and Congress’s role in upholding the Constitution. Finally, Part IV presents two circuit court decisions that illustrate this approach in the context of abortion restrictions and explains the values advanced by this approach. In both cases, the courts refused to sever unconstitutional provisions in the face of legislative knowledge of the constitutional infirmity of the statute at issue. These cases provide a model for other courts to follow in similar statutory contexts.