Established doctrine on the severability of unconstitutional statutory provisions has drawn criticism on almost every conceivable basis. Commentators have condemned severability doctrine as too malleable and as too rigid; as encouraging judicial overreaching and as encouraging judicial abdication. They have criticized the doctrine's reliance on legislative intent and its disregard of legislative intent; its excessive attention to political concerns and its inattention to political concerns; its lack of any coherent explanation.
The reasons for this lingering controversy are easy to discern. One is purely pragmatic. "We live in an age of statutes." Legislation provides our primary source of law in the late twentieth century, and legislation of a certain type: lengthy, reticulated statutes comprising several titles addressing numerous, sometimes unrelated, subjects. Questions of severability inhere in such legislation.
A more profound explanation lies in severability doctrine itself. Since the mid-nineteenth century, when they began to address the question seriously, courts have analyzed the severability of statutory provisions under a contracts approach. That is, in determining the severability of unconstitutional statutory provisions, courts have applied essentially the same test they employ to determine the severability of illegal contract terms. A statute is viewed for these purposes as a "bargain" among the legislators who enact it; in deciding whether a given statutory provision is severable, a court will look to that provision's "importance" in that "bargain." Just as in contracts law, the writing will not necessarily dispose of the question. Because severability turns on the intent of the legislators, a court may examine the statute's legislative history for indications of what the legislators would have wanted. While it may create a "presumption" in favor of severability, even an express severability clause cannot overcome "strong" indications in the legislative history that the legislators in fact "intended otherwise."
The contracts approach makes less sense with respect to statutes. A statute is not a private ordering that affects only the legislators who enact it. Rather, a statute is a "political document" that binds persons outside the legislative branch. Those persons have only limited access to the statute's "negotiations." In order to conform their conduct to the requirements of law, they must rely on the text of the statute itself. Moreover, unlike a contract, a statute does not exist apart from its written text. The statute is the written text: the intent of the legislators has no independent authority. Finally, it is much more difficult to determine the intent of the legislators who pass a statute than it is to determine the intent of the parties to a traditional bipolar contract.
In resolving questions about the severability of statutory provisions, courts should forgo the contracts approach in favor of a textual approach. Under such an approach, the text of the statute would be dispositive. Where the text addressed severability, either directly or indirectly, a court would enforce the statute's commands; a court would not, as under the contracts approach, look to legislative history to overcome the plain meaning of statutory language in this regard. Where the statute remained silent on the question, the court would, as a matter of default, sever the unconstitutional provision and enforce the remainder of the statute.
Part II of this Article describes the severability of illegal contract terms and demonstrates how the focus on the parties' shared intent comports with a proper understanding of contracts. Part III discusses the severability of statutory provisions and shows why the contracts approach makes much less sense with respect to statutes. Part IV sets forth a textual approach to the severability of statutory provisions. Finally, this Article concludes in Part V with some observations about the utility of further comparative study of contractual and statutory interpretation.
Movsesian, Mark L., "Severability in Statutes and Contracts" (1995). Faculty Publications. 113.