In several recent cases, the Supreme Court has described the issue of severability as one of remedy. The Court’s reasoning seems to be that once a court has found that one provision or application of a statute is unconstitutional and invalid, it then must decide how much of the statute should be made inoperative through the application of the remedy of invalidation. Aspects of a statute that are constitutionally unobjectionable but inseverable should be made ineffective, while those that are severable should not be eliminated. On the basis of this reasoning, four Justices were prepared to hold that the entire Patient Protection and Affordable Care Act was inoperative because inseverable from unconstitutional components. Those Justices would have reached that conclusion even though no party before the Court had shown that it was burdened by any of the allegedly inseverable provisions. Understanding invalidation for inseverability as a remedy for unconstitutionality made possible that departure from the Court’s ordinary principles of standing, as it has facilitated departure from ordinary principles of constitutional avoidance. Invalidation, however, is a remedy only figuratively, not literally. The Constitution, not any judicial decree, produces invalidity. Severability analysis is statutory construction in light of a conclusion of unconstitutionality. It is not part of the law of remedies, and taking literally the figure of speech according to which it is can lead courts into error.
Citation
John C. Harrison, Severability, Remedies, and Constitutional Adjudication, 83 George Washington Law Review, 56–100 (2014).