Partial unconstitutionality

New York University Law Review

Volumn 85, Issue 3, 2010, Pages 738-794

  Walsh, Kevin C ^a  

^a UNIVERSITY OF RICHMOND   (United States)

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EID: 77956725654     PISSN: 00287881     EISSN: None     Source Type: Journal    
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References (269)

1. See INS v. Chadha, 462 U.S. 919, 956-59 (1983) (invalidating Immigration and Nationality Act, Pub. L. No. 414, § 244(b), (c), 66 Stat. 163, 216 (1952)).
2. See United States v. Morrison, 529 U.S. 598, 627 (2000) (invalidating Violence Against Women Act of 1994, Pub. L. No. 103-322, § 40302(c), 108 Stat. 1796, 1941).
3. See United States v. Grace, 461 U.S. 171, 183 (1983) (invalidating in part Act of August 18, 1949, Pub. L. No. 250, § 6, 63 Stat. 616, 617 as applied to public sidewalks surrounding Supreme Court building).
4. See City of Boerne v. Flores, 521 U.S. 507, 534-36 (1997) (invalidating in part Religious Freedom Restoration Act (RFRA) of 1993, Pub. L. No. 103-141, § 6(a), 107 Stat. 1488, 1489 as applied to state and local governments).
5. 5 U.S. (1 Cranch) 137, 176-80 (1803) (holding that portion of Judiciary Act of 1789 allowing Supreme Court "to issue writs of mandamus to public officers" conflicts with Constitution and is therefore void).
6. Richard H. Fallon, Jr., As-Applied and Facial Challenges and Third-Party Standing, 113 HARV. L. REV. 1321, 1337 n.91 (2000) ("[T]he Court did not invalidate that linguistic unit of the [Judiciary Act of 1789] insofar as it authorized the Supreme Court to issue writs of mandamus in the exercise of its appellate jurisdiction.").
7. Marbury, 5 U.S. (1 Cranch) at 177.
8. Michael C. Dorf, Fallback Law, 107 COLUM. L. REV. 303, 305 (2007) ("[A] severability clause ⋯ provides that in the event that the original law is held partly invalid, a fallback of the original law minus the invalid provision or application will take effect.").
9. see also Richard H. Fallon, Jr., The Linkage Between Justiciability and Remedies-And Their Connections to Substantive Rights, 92 VA. L. REV. 633, 674-75 (2006) ("[T]he normal presumption of constitutional law is that statutes are 'severable' (or, synonymously, 'separable'): Even if a statute has unconstitutional components or would be unconstitutional as applied to particular facts, the unconstitutional elements or applications can be severed from the valid ones and the valid ones enforced.").
10. Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 330 (2006) (quoting Califano v. Westcott, 443 U.S. 76, 94 (1979)).
11. Id. Additionally, the Court assumes that "Congress could not have intended a constitutionally flawed provision to be severed from the remainder of the statute if the balance of the legislation is incapable of functioning independently." Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987).
12. See United States v. Booker, 543 U.S. 220, 246 (2005) (stating that severability depends on "what 'Congress would have intended' in light of the Court's constitutional holding") (citation omitted).
13. See, e.g., Pollock v. Farmers' Loan & Trust Co., 158 U.S. 601, 635-37 (1895) (invalidating as inseparable all income tax provisions of federal tax statute after determining that provisions taxing income derived from real and personal property were unconstitutional).
14. Booker, 543 U.S. at 259 ("[W]e must sever and excise two specific statutory provisions: the provision that requires sentencing courts to impose a sentence within the applicable Guidelines range ⋯ and the provision that sets forth standards of review on appeal ⋯.") (citation omitted).
15. Dorf, supra note 8, at 370.
16. See Mark L. Movsesian, Severability in Statutes and Contracts, 30 GA. L. REV. 41, 66-73 (1995) (discussing improper importation of contract law concepts into statutory severability analysis).
17. John Copeland Nagle, Severability, 72 N.C. L. REV. 203, 210-25 (1993) (tracing development of Supreme Court jurisprudence on severability doctrine).
18. Michael D. Shumsky, Severability, Inseverability, and the Rule of Law, 41 HARV. J. ON LEGIS. 227, 240-43 (2004) (describing Supreme Court's reassertion of severability doctrine in historical context of New Deal).
19. Robert L. Stern, Separability and Separability Clauses in the Supreme Court, 51 HARV. L. REV. 76, 79-82 (1937) (surveying history and evolution of severability doctrine).
20. Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 328 (2006).
21. Id. (citation omitted).
22. See, e.g., Gillian E. Metzger, Facial Challenges and Federalism, 105 COLUM. L. REV. 873, 885 & n.52 (2005) (distinguishing "application severability" from "text severability" and identifying sources that discuss them).
23. Adrian Vermuele, Saving Constructions, 85 GEO. L.J. 1945, 1950 n.26 (1997) ("[S]everability problems arise not only with respect to different sections, clauses or provisions of a statute, but also with respect to applications of a particular statutory provision when some (but not all) of those applications are unconstitutional.").
24. Ayotte, 546 U.S. at 328.
25. See, e.g., United States v. Booker, 543 U.S. 220, 249 (2005) (opting not to engraft constitutional requirements onto existing sentencing scheme on ground that Congress would have preferred total invalidation).
26. Id. at 257-58.
27. See, e.g., 2 U.S.C. § 454 (2006) ("If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the validity of the remainder of the Act and the application of such provision to other persons and circumstances shall not be affected thereby.").
28. See, e.g., Dorchy v. Kansas, 264 U.S. 286, 290 (1924) (describing severability clause as "[an] aid in determining [legislative] intent ⋯ not an inexorable command").
29. Shumsky, supra note 15, at 230 ("Despite the unambiguous command of severability and inseverability clauses, the Court has repeatedly held that they create only a rebuttable presumption that guides-but does not control-a reviewing court's severability determination.").
30. For a general discussion of inseverability clauses, see Israel E. Friedman, Note, Inseverability Clauses in Statutes, 64 U. CHI. L. REV. 903, 907-09 (1997).
31. Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 686 (1987).
32. RICHARD H. FALLON, JR., DANIEL J. MELTZER & DAVID L. SHAPIRO, HART & WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 182-83 (5th ed. 2003).
33. See, e.g., Michael C. Dorf, Facial Challenges to State and Federal Statutes, 46 STAN. L. REV. 235, 285 (1994) (noting that federal and state severability doctrines are "remarkably uniform" in practice).
34. See United States v. Booker, 543 U.S. 220, 320-32 (2005) (Thomas, J., dissenting) (describing cases in which Supreme Court "disposes of as-applied challenges to a statute by simply invalidating particular applications of the statute, without saying anything at all about severability"); United States v. Nat'l Treasury Employees Union, 513 U.S. 454, 488 (1995) (O'Connor, J., concurring in part and dissenting in part) (describing precedents that held certain statutory applications unconstitutional as "having involved implied severability"); United States v. Grace, 461 U.S. 171, 184 (1983) (Marshall, J., concurring in part and dissenting in part) (describing judgment of partial unconstitutionality as "excising" unconstitutional applications from challenged statute).
35. See, e.g., Booker, 543 U.S. at 258 ("We now turn to the question of which portions of the sentencing statute we must sever and excise as inconsistent with the Court's constitutional requirement.").
36. See Dorf, supra note 26, at 238 ("[A] statute that has unconstitutional applications cannot be constitutionally applied to anyone, even to those whose conduct is not constitutionally privileged, unless the court can sever the unconstitutional applications of the statute from the constitutionally permitted ones.").
37. Metzger, supra note 18, at 887-88 ("If unconstitutional applications are not severed, the statute cannot be applied to any litigant, even one making no claim of constitutional protection for her conduct. On the other hand, if unconstitutional applications of a statute can be severed, refusing to apply the statute to conduct that is not constitutionally protected becomes unjustified.").
38. 226 U.S. 217 (1912).
39. Id. at 218-20.
40. Id. at 219-20.
41. Id. at 219.
42. Id. at 219-20.
43. FALLON ET AL., supra note 25, at 182. According to Fallon, the question in a case like Yazoo is "whether a statutory provision that does not on its face reflect divisible linguistic units-such as a requirement that railroads must settle 'all claims'-can nonetheless be severed into valid and invalid elements." Id.
44. Id.
45. See id. ("If the statute is viewed as comprising a number of sub-rules, it becomes comprehensible that sub-rule (i) could survive even if sub-rule (ii) were constitutionally invalid and had to be severed.").
46. Fallon, supra note 6, at 1331 (internal citation omitted).
47. Dorf, supra note 26, at 249. This attribution is necessary to reconcile the Court's conclusion with the possibility that the statute had unconstitutional applications because, "[i]f the statute requiring railroads to settle all claims promptly is an unconstitutional exercise of the state's authority, then, one would suppose, no railroad should be judged by it, even if the railroad's conduct merits no constitutional protection." Id. at 243.
48. See Fallon, supra note 6, at 1339 ("A court has no power to remove a law from the statute books. When a court rules that a statute is invalid-whether as applied, in part, or on its face-the legal force of its decision resides in doctrines of claim and issue preclusion and of precedent.").
49. David L. Shapiro, State Courts and Federal Declaratory Judgments, 74 NW. U. L. REV. 759, 767 (1979) ("No matter what language is used in a judicial opinion, a federal court cannot repeal a duly enacted statute of any legislative authority.").
50. It may, however, be necessary for a party to prior litigation holding the statute unconstitutional to seek modification of an injunction pursuant to Rule 60(b). FED. R. CIV. P. 60(b)(5).
51. see also Agostini v. Felton, 521 U.S. 203, 239-40 (1997) (authorizing relief from permanent injunction limiting local educational officials' use of federal funds based on significant changes in Establishment Clause doctrine).
52. Dorf, supra note 8, at 370.
53. Id.
54. Id.
55. Id.; see also id. ("[Without severability,] any judicial decision finding any law unconstitutional, on its face or as applied, would call into question the entire legal code.").
56. Dorf, supra note 26, at 238.
57. See id. at 250 (describing Supreme Court's opinion in Marbury as applying "the same presumption of severability" as in Yazoo).
58. Cf. Fallon, supra note 6, at 1337 n.91 ("Marbury provides an especially nice illustration of the extent to which constitutional practice presupposes that statutory rules-understood as linguistic units-can and should be treated as comprising severable subrules.").
59. Dorf, supra note 26, at 250.
60. See supra note 27.
61. Stern, supra note 15.
62. Id. at 78 ("Only if the apparent inconsistencies in Supreme Court decisions [dealing with the severability of statutes] are exposed and explained, as they have not been by the Court itself, can a conscious effort be made to formulate understandable and sensible principles for the future.").
63. Id. at 101-02 ("[T]he Court avails itself of one [severability] formula or another in order to justify results which seem to it to be desirable for other reasons.").
64. See Shumsky, supra note 15, at 240 ("Since 1936, ⋯ severability questions seem to have mostly faded into the background-perhaps as a consequence of the Court's willingness to accept the constitutionality of most New Deal-style regulatory legislation.").
65. Movsesian, supra note 15, at 41-42 (internal citations omitted).
66. See, e.g., David H. Gans, Severability as Judicial Lawmaking, 76 GEO. WASH. L. REV. 639, 663 (2008) ("[Severability doctrine] gives courts extensive power to rewrite statutes ⋯ in a way that makes after-the-fact legislative correction unlikely[,] ⋯ warps legislatures' incentives to obey constitutional norms ex ante[,] [and] allows courts to make vague law without thinking about it.").
67. Nagle, supra note 15, at 225 ("The confusion surrounding presumptions and the absence of a consistent effort to explain how severability fits within broader theories of judicial review and statutory construction has left all of the various tests used over the years unanchored by a principled approach.").
68. Emily L. Sherwin, Rules and Judicial Review, in 6 LEGAL THEORY 299, 308 (2000) (arguing that existing doctrine inadequately accounts for "the effect of severance and related practices in establishing new rules, and the relative competence of courts and legislatures to perform the rulemaking function").
69. 543 U.S. 220, 259 (2005).
70. Id. Justice Breyer first inquired whether Congress would have preferred federal sentencing with the Sixth Amendment jury requirement engrafted onto the current system, or instead would have preferred no determinate sentencing scheme at all. Id. at 249. He concluded that "Congress would likely have preferred the total invalidation of the Act to an Act with the Court's Sixth Amendment requirement engrafted onto it." Id. Next, he asked whether some remedy short of complete invalidation would both solve the constitutional problem and also be consistent with legislative intent, concluding that "Congress would likely have preferred the excision of some of the Act, namely the Act's mandatory language, to the invalidation of the entire Act." Id. The Court accordingly "sever[ed] and excise[d]" the provision that made the Guidelines mandatory, along with intertwined provisions relating to appeal. Id. at 259.
71. Id. at 266-67. The remedy of making the Guidelines advisory in all federal sentencing was not argued for by any party or amicus curiae.
72. Compare id. at 247 (majority opinion), with id. at 283 (Stevens, J., dissenting) ("The precedent on which the Court relies is scant indeed."), and id. at 325 (Thomas, J., dissenting) (arguing that majority's remedial application of severability "constitute[s] legislation beyond [the Court's] judicial power").
73. Metzger, supra note 18, at 892 (quoting Booker, 543 U.S. at 248). Metzger grounds her defense of the Booker remedy in the principle of "application severability," arguing that "if a provision's unconstitutional applications cannot be severed or construed away, then ⋯ [the] provision cannot be constitutionally applied at all ⋯." Id. at 892. According to Metzger, "application inseverability" supplies the source of judicial authority to invalidate a statutory provision that is not facially unconstitutional. Id.
74. Id.
75. Booker, 543 U.S. at 246 (internal quotations omitted).
76. Determinate federal sentencing based on binding guidelines promulgated by the United States Sentencing Commission resulted from the Sentencing Reform Act of 1984. See Mistretta v. United States, 488 U.S. 361, 367-68 (1989) (describing revisions to federal sentencing in 1984 Act). The Fifth and Sixth Amendment limitations on judicial factfinding that doomed the Guidelines in Booker began to emerge in the mid-to-late 1990s.
77. See Jones v. United States, 526 U.S. 227, 243 n.6 (1999) (arguing that under Fifth and Sixth Amendment limitations, "any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt").
78. Douglas A. Berman, Examining the Blakely Earthquake and Its Aftershocks, 16 FED. SENT'G REP. 307, 307 (2004) ("[T]he constitutional ground under sentencing reform had been rumbling for some time before the Blakely earthquake hit."). These limitations were given serious bite in Apprendi v. New Jersey, 530 U.S. 466 (2000), in which the Court held unconstitutional a New Jersey hate-crime statute that provided for a sentencing enhancement based on judicial factfinding. But it was not until Blakely v. Washington, 542 U.S. 296 (2004), that the principle underlying Apprendi was understood as a direct threat to the federal guidelines system.
79. See Berman, supra, at 308 (explaining that Court's holding in Blakely came as surprise because "most observers believed [Blakely] was to serve as final confirmation that the Apprendi decision would not radically transform modern sentencing practices"). There is no way that the Congress that created the Guidelines system two decades earlier could have formed an intent about how the system should operate in light of the constitutional requirements identified in Blakely.
80. As Emily Sherwin has observed, "severability questions are triggered by unplanned statutory failures." Sherwin, supra note 55, at 304; see also Stern, supra note 15, at 98 ("Difficult problems of statutory construction generally arise because the legislature has not thought of the particular situation which has come before the Court, and accordingly had no real intention as to how the law should be construed with respect to it."). The generalization about unplanned statutory failures does not always hold true, particularly with respect to legislation in fertile areas of constitutional litigation. But it holds often enough to assign the absence of forethought as one reason for the absence of actual intent.
81. See, e.g., Sherwin, supra note 55, at 305 ("The difficulty here is that hypothetical intent is quite speculative.").
82. Id. These criticisms are aimed not at the consideration of legislative intent in general, but at the counterfactual speculation required by modern severability doctrine in particular.
83. 540 U.S. 93 (2003) (upholding against facial First Amendment challenge various provisions of Bipartisan Campaign Finance Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 81 (codified in scattered sections of 2 U.S.C.) (regulating soft-money contributions and "electioneering communications")).
84. Davis v. FEC, 128 S. Ct. 2759 (2008). The Millionaires' Amendment relaxed contribution limits for candidates running against opponents who spent significant sums of their own money in support of their candidacy. See id. at 2765-67 (describing how "Millionaires' Amendment" provision operated). The Court held that "imposing different contribution and coordinated party expenditure limits on candidates vying for the same seat is antithetical to the First Amendment." Id. at 2774.
85. But see Transcript of Oral Argument at 47-48, Davis, 554 U.S. - (No. 07-340) (Solicitor Gen. Paul Clement) (arguing that Millionaires' Amendment is severable, relying in part on presence of severability clause); 34 Op. FEC 9 (2008) (concluding that personal loan provision in BCRA was severable from unconstitutional Millionaires' Amendment).
86. A wrinkle in this argument is that some legislators who voted for the Millionaires' Amendment may have recognized the possibility that it was unconstitutional but voted to include it anyway in the belief that the statute's severability clause would prevent its unconstitutionality from bringing down the rest of the statute. Of course, this additional wrinkle just further exposes how difficult the project of discerning hypothetical legislative intent can be.
87. Cf. Stern, supra note 15, at 113 ("[T]he judges who disapproved of the law thought it was inseparable, while those who regarded it as constitutional also took a contrary position on the question of separability.").
88. The Court's recent decision in Citizens United v. FEC, 130 S. Ct. 876 (2010), presents another opportunity for speculation about the BCRA's severability. Would Congress have enacted the legislation if it knew that it could not ban independent corporate spending on electioneering communications? What about the ban on electioneering communications as applied to others? Given the stakes of the answers to these questions and the indeterminacy of the inquiry, perhaps the answers will depend on who one asks.
89. Dorf, supra note 8, at 370.
90. PHILIP HAMBURGER, LAW AND JUDICIAL DUTY 552 (2008).
91. THE FEDERALIST No. 78, at 378 (Alexander Hamilton) (Terence Ball ed., 2003).
92. See id. ("It may truly be said to have neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.") (emphasis added).
93. Id. at 379.
94. Id. at 380.
95. Id.
96. Id. at 379-80.
97. See id. at 380 ("It not uncommonly happens, that there are two statutes existing at one time, clashing in whole or in part with each other, and neither of them containing any repealing clause or expression.") (emphasis added).
98. Id.
99. Mary Sarah Bilder, Idea or Practice: A Brief Historiography of Judicial Review, 20 J. POL'Y HIST. 6, 8 (2008).
100. HAMBURGER, supra note 73, at 17.
101. Saikrishna B. Prakash & John C. Yoo, The Origins of Judicial Review, 70 U. CHI. L. REV. 887, 914 (emphasis added).
102. See also id. at 916 ("[V]indicating the people's choice of a limited Constitution requires judges to refuse to enforce unconstitutional statutes."); id. at 955 ("Throughout the United States, dozens of speakers and writers made clear that judges, federal and state, could refuse to enforce legislation that transgressed the Constitution.").
103. See 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 78 (Max Farrand ed., rev. ed. 1937) (statement of Col. Mason) ("[I]f the Judges were joined in this check on the laws, ⋯ they could impede in one case only, the operation of laws. They could declare an unconstitutional law void.") (emphasis added).
104. BRUTUS XII (1788), reprinted in THE FEDERALIST WITH LETTERS OF "BRUTUS" 506, 508 (Terence Ball ed.) ("[T]he courts are vested with the supreme and uncontroulable power, to determine, in all cases that come before them, what the constitution means; they cannot therefore, execute a law, which, in their judgment, opposes the constitution, unless we can suppose they can make a superior law give way to an inferior.") (emphasis added). Although most of this evidence speaks to only the shared presupposition of case-by-case displacement of unconstitutional statutes, there are some statements that come closer to speaking to the issue of partial unconstitutionality. For example, in congressional debates over the First Judiciary Act, Elbridge Gerry stated that "[t]he Constitution will undoubtedly be [the courts'] first rule; and so far as your laws conform to that, they will attend to them, but no further." 1 ANNALS OF CONG. 829 (Joseph Gales ed., 1834) (emphases added).
105. See supra notes 78-81 and accompanying text.
106. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178 (1803) (emphasis added).
107. U.S. CONST. art. I, § 10, cl. 1 ("No State shall ⋯ pass any ⋯ Law impairing the Obligation of Contracts ⋯.").
108. U.S. CONST. art. I, § 8, cl. 3 ("The Congress shall have Power ⋯ To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes ⋯.").
109. U.S. CONST. art. I, § 10, cl. 2 ("No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing [its] inspection Laws ⋯.").
110. U.S. CONST. art. I, § 10, cl. 1.
111. 10 F. Cas. 542 (C.C.D. Pa. 1814) (No. 5509).
112. Id.
113. Id. at 547.
114. Id. at 544 (emphasis added).
115. Id.
116. Id. According to Washington, "a law prospective in its operation, under which a contract afterwards made, may be avoided in a way different from that provided by the parties, would be clearly constitutional." Id. By contrast, "if the law act retrospectively, as to other contracts, so as to impair their obligation, the law is invalid; or in milder terms, it affords no rule of decision in these latter cases." Id.
117. Id. at 545-47.
118. Id. at 544 ("The question then is, whether a law of a state, which declares that a debtor, by delivering up his estate for the benefit of his creditors, shall be for ever discharged from the payment of his debts, due or contracted before the passage of the law ⋯ can be set up to bar the right of such creditor to recover his debt, either in a federal or state court? ⋯ [I]t cannot; because the law is ⋯ one which, in the case supposed, impairs the obligation of a contract.").
119. Id. at 545-47.
120. Id. at 547.
121. 17 U.S. 122, 208 (1819).
122. Id. ("[The Act], so far as it attempts to discharge this defendant from the debt in the declaration mentioned, is contrary to the constitution of the United States, and ⋯ the plea is no bar to the action.") (emphasis added). The Court's certificate sending the case back down to the lower court also contains language explicitly delineating the scope of the Court's holding: CERTIFICATE⋯. [T]his Court is of opinion, that, since the adoption of the constitution of the United States, a State has authority to pass a bankrupt law, provided such law does not impair the obligation of contracts, within the meaning of the constitution, and provided there be no act of Congress in force to establish a uniform system of bankruptcy, conflicting with such law. This Court is farther of opinion, that the act of New-York, which is pleaded in this case, so far as it attempts to discharge the contract on which this suit was instituted, is a law impairing the obligation of contracts within the meaning of the constitution of the United States, and that the plea of the defendant is not a good and sufficient bar of the plaintiff's action.
123. Id. (emphasis added).
124. Id. at 197-98.
125. 25 U.S. 213 (1827).
126. According to David P. Currie, "Ogden was the only constitutional case in thirty-four years in which Marshall signed a dissent, and he took Story and Duvall with him."
127. DAVID P. CURRIE, THE CONSTITUTION IN THE SUPREME COURT: THE FIRST HUNDRED YEARS 1789-1888, at 151 (1985).
128. The Court addressed two issues in Ogden. The first was left open in Sturges-whether a state debtor discharge law violated the Contracts Clause as applied to a contract entered into after the statute had been enacted. See Ogden, 25 U.S. at 254 (stating that "whether the obligation of a contract is impaired by a State bankrupt or insolvent law, which discharges ⋯ liability under a contract entered into in that State after the passage of the act" is a question that "has never before been distinctly presented to the consideration of this Court, and decided"). On this issue, the Court ruled that prospective application of a debtor discharge law did not impair the obligation of a contract. Id. at 368-69 (Johnson, J.). The second issue related to territorial limits on legislative jurisdiction. On this issue, Justice Johnson joined the three dissenters from the Court's disposition of the first issue and held that the New York debtor discharge law could not constitutionally be applied to the detriment of Saunders, a citizen of Kentucky who had "never voluntarily subjected himself to [New York's] laws, otherwise than by the origin of his contract." Id. at 358. Justice Johnson summarized the differential effect of these conclusions on the validity of the New York debtor discharge law: "[A]s between citizens of the same State, a discharge of a bankrupt by the laws of that State, is valid as it affects posterior contracts; [and] as against creditors, citizens of other States, it is invalid as to all contracts." Id. at 368-69.
129. CURRIE, supra note 106, at 194-95 (1985) ("When we attempt to analyze the work of individual Justices, the most striking fact is that most of Marshall's brethren were nearly invisible⋯. Trimble wrote once, for himself alone, to uphold the prospective bankruptcy law.").
130. Ogden, 25 U.S. at 316.
131. Id. at 295 (Johnson, J.).
132. Id. at 262 (Washington, J.). The Court applied the distinction between retrospective and prospective application when assessing Contracts Clause challenges not only to debtor discharge laws, but also to other types of statutes. In Bronson v. Kinzie, for example, the Court held invalid an Illinois mortgage moratorium law that limited the remedies available to a lender as applied to mortgages entered into prior to the law's passage. 42 U.S. (1 How.) 311, 320-22 (1843). The Court's opinion explicitly recognized that the law could be applied constitutionally to mortgages entered into after the statute's enactment.
133. Id. at 321. Relatedly, in Woodruff v. Trapnall, the Court partially invalidated legislation that repealed a provision of the charter of the Bank of Arkansas providing that its notes would be accepted in payment of public debts. 51 U.S. (1 How.) 190, 207 (1851). This legislation impaired the obligation of contracts with respect to bank notes issued before the repeal, but was valid with respect to bank notes issued after. See id. at 206. ("That the state had the right to repeal the above section may be admitted. And the emissions of the bank subsequently are without the guaranty. But the notes in circulation at the time of the repeal are not affected by it."). Again, in each of these cases, statutory invalidity meant that the statute would not be given effect with respect to certain circumstances, not that the act was itself invalid. See id. at 207 ("The power of the legislature to repeal the section, the stock of the bank being owned by the state, is not controverted; but that act cannot affect the notes in circulation at the time of the repeal.").
134. 22 U.S. (1 Wheat.) 1 (1824).
135. 45 Mass. (1 Met.) 282 (1842).
136. Gibbons was the owner of two steamboats which he operated as ferries between New York City and Elizabethtown, New Jersey, pursuant to a federal license that permitted him to engage in the "coasting trade." Gibbons, 22 U.S. at 2. Ogden possessed the exclusive right under New York law to operate steamboat service on New York waters; he had been assigned this right by Robert Fulton and Robert Livingston, who had received it from a succession of New York statutes. Id. at 1-2. Ogden sued in New York state court for an injunction to enforce his exclusive right, and he obtained a permanent injunction, which he successfully defended on appeal within the New York system. Id. at 1-3. The Supreme Court heard Gibbons's appeal. Id. at 3.
137. Id. at 210 (emphasis added). This focus obviated the question of concurrent power because "[s]hould this collision exist, it will be immaterial whether [New York's] laws were passed in virtue of a concurrent power 'to regulate commerce with foreign nations and among the several States,' or in virtue of a power to regulate their domestic trade and police." Id. According to the Court, "[t]he real and sole question seems to be, whether a steam machine, in actual use, deprives a vessel of the privileges conferred by a license" issued under a 1793 federal statute regulating the coasting trade. Id. at 219. The Court concluded that "the act of a State inhibiting the use [of its waters or entering ports] to any vessel having a license under the act of Congress, comes ⋯ in direct collision with [the federal] act." Id. at 221. The Court's holding, therefore, was that "so much of the laws of the State of New York, as prohibits vessels licensed according to the laws of the United States, from navigating the waters of the State of New York, by means of fire or steam, is repugnant to the said constitution, and void." Id. at 240 (emphases added).
138. 45 Mass., at 282. The Supreme Court reversed the Norris decision, which it decided together with Smith v. Turner, a similar New York case, in the Passenger Cases, 48 U.S. (1 How.) 283 (1849). But the Court's reasoning in reversal did not call into question Shaw's reasoning regarding partial unconstitutionality. In fact, the arguments of counsel and the opinions of the Justices in the Passenger Cases reveal the same provision-specific approach to partial unconstitutionality taken by Chief Justice Shaw. Section 3 of the statute at issue in Norris contained the invalid tax provision, while Section 1 authorized the boarding of ships for inspection, and Section 2 authorized the port city to require payment of a $1000 bond for "any lunatic, idiot, maimed, aged, or infirm person" as security against such individuals becoming "a city, town, or State charge" after landing. Id. at 409. The Court's constitutional reasoning invalidated only Section 3. Id. at 410. Indeed, both Justice Grier (in the majority) and Justice Taney (in dissent) explicitly stated that Massachusetts's power under Section 2 was not in question in the case.
139. See id. at 456-57 (Grier, J.); id. at 469 (Taney, J., dissenting). The Court took a similarly narrow approach in Smith v. Turner, the companion New York case. Id. at 283. Smith was a challenge to certain sections in a New York statute requiring the payment by ship captains of a per capita tax on foreign passengers brought into the Port of the City of New York. Id. at 284. The Court's invalidation of the tax was limited to these sections and did not affect the other sections. Id. at 572.
140. Id. at 294.
141. Id. at 287-88 (emphases added).
142. See id. at 288. ("The question therefore in the present case, is, not whether some single provision may not be found in this act, which may conflict with the law of the United States, but whether the provision requiring the master or agent of a vessel, arriving within the limits of the State, with alien passengers on board, liable to become chargeable to the State, to pay two dollars for each of such passengers, before he can be permitted to land them, conflicts with that law.").
143. Norris, 45 U.S. at 284.
144. 25 U.S. (1 Wheat.) 419, 441-42 (1827). In Brown, the Court reviewed the constitutionality of a license requirement for liquor importers and wholesalers who were prosecuted for selling without a license. Id. at 436. The challenged license requirement was an amendment to a statute that had previously required only retailers to pay duties. Id. at 450 (Thompson, J., dissenting). Chief Justice Marshall's opinion for the Court invalidated the importer/wholesaler license requirement, which functioned as a tax on imports, while leaving the retailer licensing scheme intact.
145. Id. at 459. This holding depended on the Court's identification of the point at which the constitutional prohibition on state taxation of imports no longer prevented the states from levying a tax on goods that had previously been imported. Chief Justice Marshall reasoned that "when the importer has so acted upon the thing imported, that it has become incorporate and mixed up with the mass of property in the country, it has perhaps lost its distinctive character as an import, and has become subject to the taxing power of the State; but while remaining the property of the importer, in his warehouse, in the original form or package in which it was imported, a tax upon it is too plainly a duty on imports to escape the prohibition in the constitution." Id. at 441-42.
146. Id. at 441-42.
147. 41 Mass. (1 Pick.) 359, 361-62 (1837).
148. Id. at 361.
149. Id. at 363. Addressing the Commerce Clause argument first, Shaw described the challenged law as a health and welfare regulation, which the state could permissibly enforce except to the extent that it "shall happen, in any particular instance, to come directly in conflict with the operation of some law of the United States made in pursuance of its enumerated powers."
150. Id. at 361. In the case of such a conflict, the Supremacy Clause dictates that "to the extent of such collision and repugnancy, the law of the State must yield, and to that extent and no further, it is rendered by such repugnancy, inoperative and void." Id. Such a conflict "is not to be presumed, but ⋯ must be clearly shown and established." Id. at 365. Kimball proved no such conflict-he failed to show that the law regulating retail sales of spirituous liquors would impede federal law-and he therefore lost on this challenge. Id.
151. Id. at 362.
152. See id. ("Supposing the law could be construed to be repugnant to the constitution of the United States, in so far as it prohibited the sale of imported spirits by the importer in the original package, it would be void thus far and no further, and in all other respects conforming to the acknowledged power of the State government, it would be in full force."). Elaborating on this reasoning, Shaw stated further that "[w]hether legal enactments, some of which it is competent for the legislature to make, and others not, are contained in the same or in different sections of a statute, can make no difference." Id. The reason is that "it is not the defect of form, but of power, that invalidates any of them; it is, therefore, the subject matter, and not the arrangement of the language in which it is embodied, that is to be regarded in deciding whether any provision is constitutional or not." Id.
153. Id. ("If ⋯ the defendant had offered to show in his defence, that the spirits charged to have been illegally sold by [the defendant], without license, contrary to the statute, were imported by himself, and sold in the original package, it would then have given rise to the question which has been mainly argued in the present case.").
154. Id.
155. 44 U.S. (1 How.) 133, 149-50 (1845).
156. Id. at 144.
157. Id. at 150.
158. See also State Bank of Ohio v. Knoop, 57 U.S. (1 How.) 369 (1853) (invalidating statutory tax increase applied to banks whose charter, under prior act, provided for lower rates); Planters' Bank v. Sharp, 47 U.S. (1 How.) 301 (1848) (invalidating state restrictions on negotiability of bank notes because prior act required that they be negotiable). Because the doctrinal test for invalidity under the Contracts Clause at the time looked only at specific contracts at issue, the extent of invalidity in Knoop was limited to the statute's applications to only those contracts actually impaired: "[T]he tax law of 1851 ⋯ impairs the obligation of the contract, which is prohibited by the Constitution of the United States, and, consequently, that the act of 1851, as regards the tax thus imposed, is void." Id. at 392 (emphasis added). Similar reasoning appears in Planters' Bank.
159. See 47 U.S. at 334 ("[T]he law under which this action has been abated must be considered as having impaired the obligation of contracts, and therefore to be in this respect unconstitutional, and the judgment of the State court erroneous.") (emphasis added).
160. 158 U.S. 601 (1895).
161. The Court heard argument twice in Pollock. Its first decision did not resolve the entire case because the Court was evenly divided on several questions. See Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429, 586 (1895). In its first decision, the Court held that a tax on rents or incomes from real estate was unconstitutional. Id. But the Court was evenly divided on the remaining questions, which included: (1) whether the invalidity of the tax on rents and income from real property invalidated the whole act; (2) whether the tax on income derived from personal property was unconstitutional; and (3) whether any other parts of the income tax were unconstitutional. Id. Because the effect of an even division is to affirm the judgment below, which in this case had rejected the constitutional challenge in its entirety, the only portion of the law that was unconstitutional after the first decision was the income tax on rents and income from real estate. Id. The second decision is discussed in the text above.
162. Pollock, 158 U.S. at 635.
163. Id. at 637.
164. Id.
165. Id.
166. Id.
167. Stern, supra note 15, at 113.
168. Although I have not undertaken to research the approach to partially unconstitutional (or otherwise partially invalid) statutes before Marbury, the limited evidence that I have come across is consistent with the approach described above. See Hutchins v. Player, (1663) 124 Eng. Rep. 585, 610 (C.P.) ("[T]hat part of the act which concerns pitching cloths at Blackwell Hall, and the hallage, is purely distinct, and hath no relation to that part of the act which concerns the factors; and, therefore, the one part, as I conceive, shall not vitiate the other. And this construction of the act, as it is agreeable with common reason, that what is good shall not be vitiated by what is bad, so it is also agreeable with the reason of the law.").
169. JOSEPH HENRY SMITH, APPEALS TO THE PRIVY COUNCIL FROM THE AMERICAN PLANTATIONS 628 (1950) (reporting on 1760 opinion by two crown law officers that "the King in Council lacked the power to disallow in part Pennsylvania acts," but that "there may be cases in which particular provisions may be void ab initio though other parts of the law may be valid, as in clauses where any act of Parliament may be contraversed or any legal right of a private subject bound without his consent").
170. 1 JOHN STRANGE, REPORTS OF ADJUDGED CASES IN THE COURTS OF CHANCERY, KING'S BENCH, COMMON PLEAS, AND EXCHEQUER 469 (London, A. Strahan & W. Woodfall 1795) ("There is no doubt but a by-law may be good in part, and void for the rest; for where it consists of several particulars, it is to all purposes as several by-laws, though the provisions are thrown together under the form of one." (reporting on Fazakerley v. Wiltshire, (1716) 88 Eng. Rep. 754 (K.B.))).
171. See also HAMBURGER, LAW AND JUDICIAL DUTY 262 n.11 (citing cases).
172. Stern, supra note 15, at 79. Stern's use of "separability" rather than "severability" reflected the more prevalent usage when Stern wrote in 1937. The terms are understood today to be interchangeable. See Fallon, supra note 6, at 1331 n.55 ("The terms 'severable' and 'separable,' and 'severability' and 'separability,' are treated as synonymous by the courts and in the literature ⋯.").
173. Stern, supra note 15, at 79.
174. Gans, supra note 55, at 639.
175. See also Dorf, supra note 26, at 250 (describing Court's opinion in Marbury as applying "the same presumption of severability" as in Yazoo).
176. Shumsky, supra note 15, at 232 (describing Marbury as reflecting "early assumption that partially unconstitutional statutes were to be severed").
177. 68 Mass. (2 Gray) 84, 94 (1854).
178. Stern, supra note 15, at 79-80. It turns out that Warren was not, as Stern thought, the first decision to use a legislative intent test to hold "that the invalid parts of a law might nullify the remainder." Id. Others have followed Stern's error on this point.
179. See, e.g., Nagle, supra note 15, at 212; Shumsky, supra note 15, at 233. In actuality, the Arkansas Supreme Court decided two cases before Warren, one in 1851 and another in 1853, in which the court relied on legislative intent to conclude that statutes' unconstitutional parts were inseparable from their constitutional parts, requiring invalidation of the entire statutes.
180. See Washington v. State, 13 Ark. 752, 763-64 (1853) (invalidating billiards licensing scheme); Eason v. State, 11 Ark. 481, 501-03 (1851) (invalidating act expanding jurisdiction of justices of peace). But there is no point in getting hung up on figuring out precisely what was first in time: The Arkansas cases proved to be less influential than Warren, which appears first in eminence if not in time; and any other earlier cases had to have been even less influential than the Arkansas cases.
181. Stern, supra note 15, at 80 (quoting Warren, 68 Mass. (2 Gray) at 99).
182. Warren, 68 Mass. (2 Gray) at 99.
183. Movsesian, supra note 15, at 62.
184. Id.
185. Id.
186. 2 Blackf. 8 (Ind. 1826).
187. Id. at 9. Clark was not itself the prosecution but apparently a defamation action that followed that prosecution. Id. at 8-9. The plaintiff, Clark, had testified against Ellis before the justice of the peace, and Ellis accused Clark of committing perjury. Id. at 9. Clark then sued Ellis, and one of the elements of Clark's cause of action required showing that Ellis's accusations "were spoken with reference to a swearing" in the trial before the justice of the peace. Id. Ellis demurred on the ground that the proceeding before the justice of the peace was outside of the latter's jurisdiction. Id.
188. Id.
189. Id.
190. Id. at 9-10.
191. Id. at 10.
192. Id.
193. 7 Miss. (6 Howard) 625 (Err. & App. 1842).
194. Id. at 676-77.
195. Id. at 677.
196. THOMAS M. COOLEY, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION 177-81 (1st ed. Boston, Little, Brown 1868).
197. THEODORE SEDGWICK, A TREATISE ON THE RULES WHICH GOVERN THE INTERPRETATION AND APPLICATION OF STATUTORY AND CONSTITUTIONAL LAW (1st ed. New York, Voorhies 1857). Born to a prominent American family in 1811, Sedgwick was a New York lawyer who authored a treatise on damages in addition to this treatise on interpretation.
198. THE YALE BIOGRAPHICAL DICTIONARY OF AMERICAN LAW 487-88 (Roger K. Newman, ed., 2009).
199. THEODORE SEDGWICK, A TREATISE ON THE RULES WHICH GOVERN THE INTERPRETATION AND APPLICATION OF STATUTORY AND CONSTITUTIONAL LAW (John Norton Pomeroy ed., 2d ed. New York, Baker, Voorhies 1874). Pomeroy was a professor at the New York University School of Law and the Hastings School of Law, as well as a prolific treatise writer, editor, and case reporter, in the last third of the nineteenth century.
200. See John C. Leary, John Norton Pomeroy 1828-1885: A Biographical Sketch, 47 L. LIBR. J. 138, 139-42 (1954).
201. SEDGWICK, supra note 162, at 489. Sedgwick's authorities were: Ely v. Thompson, 10 Ky. (3 A.K. Marsh) 70 (1820); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824); Clark v. Ellis, 2 Blackf. 8 (Ind. 1826); City of New York v. Miln, 36 U.S. (11 Pet.) 102 (1837); Commonwealth v. Kimball, 41 Mass. (24 Pick.) 359 (1837); Edwards v. Pope, 4 Ill. (3 Scam.) 465 (1842); Norris v. Boston, 45 Mass. (4 Met.) 282 (1842); and Fisher v. McGirr, 67 Mass. (1 Gray) 1 (1854). But the profusion of case citations can be misleading. Sedgwick's cases are spread across two footnotes. For each footnote, the lead cited case contains the principle articulated by Sedgwick and then itself cites the other cases that appear in Sedgwick's footnotes. In effect, then, Sedgwick relied on two cases, Edwards for the first sentence and Fisher for the block quote. Id.
202. SEDGWICK, supra note 162, at 489 (quoting Fisher, 67 Mass. (1 Gray) at 21-22). Although decided in the same year as Warren, Fisher preceded that watershed case. Fisher was decided in the Supreme Judicial Court's March 1854 term, while Warren was decided in the October 1854 term. See Fisher, 67 Mass. (1 Gray) at 1; Warren, 68 Mass. (2 Gray) at 84.
203. SEDGWICK, supra note 162, at 489 (quoting Fisher, 67 Mass. (1 Gray) at 21).
204. SEDGWICK, supra note 163, at 413-15, 413-14 n.(a).
205. 92 U.S. 214 (1875).
206. See id. at 221 ("The question, then, to be determined, is, whether we can introduce words of limitation into a penal statute so as to make it specific, when, as expressed, it is general only.").
207. Id. at 215.
208. Id. at 221-22.
209. Id. at 218, 220.
210. Id. at 215.
211. Reese, 92 U.S. at 221.
212. Id. at 219.
213. Id. at 221.
214. Id.
215. Id.
216. Id.
217. See Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 330 (2006) ("[The Court is] wary of legislatures who would rely on our intervention ⋯."); City of Chicago v. Morales, 527 U.S. 41, 60 (1999) ("The Constitution does not permit a legislature to 'set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large.'" (quoting Reese, 42 U.S. at 221)); Reno v. ACLU, 521 U.S. 844, 884-85 n.49 (1997) (same).
218. 362 U.S. 17, 24 (1960) ("[T]o the extent Reese did depend on an approach inconsistent with what we think the better one and the one established by the weightiest of the subsequent cases, we cannot follow it here."); id. at 24-25 ("[I]f the complaint here called for an application of the statute clearly constitutional under the Fifteenth Amendment, that should have been an end to the question of constitutionality.").
219. For example, the key-cited headnote for an 1826 state court decision that does not so much as mention legislative intent describes the case as if the reasoning and disposition on severability turned on it. See Clark v. Ellis, 2 Blackf. 8, 1826 WL 1078 (Ind. 1826) ("Statute may be valid in part and invalid in part, and invalid part may be disregarded, where the two parts are not so intimately connected as to raise presumption that Legislature would not have enacted one without other.").
220. 2 NORMAN J. SINGER, SUTHERLAND STATUTES AND STATUTORY CONSTRUCTION 608 (6th ed. 2001).
221. See Dorf, supra note 8, at 370 (arguing that, without severability, "any judicial decision finding any law unconstitutional, on its face or as applied, would call into question the entire legal code"); Metzger, supra note 18, at 887-88 ("If unconstitutional applications are not severed, the statute cannot be applied to any litigant, even one making no claim of constitutional protection for her conduct.").
222. This Article does not advocate any particular theory of constitutional interpretation, such as originalism, nor does it argue that its proposed approach-displacement without inferred fallback law-should be adopted because it is more faithful to the original approach to partial unconstitutionality. The object of this Article is to retrieve a "useable past" through the study of a neglected aspect of our constitutional tradition. See Cass R. Sunstein, The Idea of a Useable Past, 95 COLUM. L. REV. 601, 603 (1995) (describing idea of "useable past" as oriented to "the goal of finding elements in history that can be brought fruitfully to bear on current problems," and defending constitutional lawyers' search for a useable past as distinct from "mere advocacy" or "history lite"). The method is not simply to identify a discrete set of legal directives that can be ripped from the world of early- to mid-nineteenth-century constitutional adjudication and burned into existing doctrine. Instead, the method begins by trying to understand and appreciate how courts during that time dealt with a practical problem that remains today, although understood within a different conceptual framework. It continues by correlating the practical solution from that time period with the conceptual framework and doctrinal tools available in present times.
223. Additionally, although the proposed approach to partial unconstitutionality includes a textualist approach to statutory interpretation, its adoption does not require the adoption of textualism more generally. Even nontextualists may conclude that the use of imaginary reconstruction for deciding what to do with partially unconstitutional statutes should be abandoned for reasons specific to the particular context of discerning hypothetical intent regarding partial unconstitutionality. As matters now stand, however, the disjunction between textualism and severability doctrine runs in the other direction. See Caleb E. Nelson, What Is Textualism?, 91 VA. L. REV. 347, 404-05 (2005) (explaining that "[t]extualist judges regularly join opinions" that use "a species of imaginative reconstruction" to answer questions of severability).
224. THE FEDERALIST No. 78, at 380 (Alexander Hamilton) (Terence Bell ed., 2003).
225. INS v. Chadha, 462 U.S. 919 (1983).
226. LAURENCE H. TRIBE, CONSTITUTIONAL CHOICES 81-82 (1985).
227. Id. at 318 n.116.
228. Id.
229. See, e.g., Golden v. Prince, 10 F. Cas. 542, 544 (C.C.D. Pa. 1814) (No. 5509) (framing issue as whether contested law "is repugnant to the constitution ⋯ and, on that account, is not to be regarded by the court, in this case").
230. See, e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178 (1803) (describing resolution of conflicting law as "very essence of judicial duty").
231. E.g., SEDGWICK, supra note 162, at 489.
232. E.g., Norris v. Boston, 45 Mass. (4 Met.) 282, 287-88 (1842). A narrow qualifier on this principle is that the remainder will not survive as enforceable law if it is incapable of functioning independently of the unconstitutional provision or provisions of a statute. This qualifier states something of a truism, but is worth noting nonetheless. Its presence in case law predates the advent of the legislative intent-based approach to severability. See, e.g., Clark v. Ellis, 2 Blackf. 8, 10 (Ind. 1826) ("That part which is unconstitutional, is considered as if stricken out of the act; and if enough remains to be intelligibly acted upon, it is considered as the law of the land."). The same qualifier is present in current law, although it is now understood in legislative intent-based terms.
233. See, e.g., Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987) ("Congress could not have intended a constitutionally flawed provision to be severed from the remainder of the statute if the balance of the legislation is incapable of functioning independently."). This qualifier states a very narrow limitation on the principle of "void to the extent of repugnancy, but no further." The test is not whether the remainder would function in the manner intended by the legislature, but whether the remainder is capable of functioning at all.
234. See, e.g., Fallon, supra note 6, at 1338 (describing doctrinal tests that result in facial invalidation, such as "purpose" tests and "suspect-content" tests).
235. Golden, 10 F. Cas. at 547.
236. This is actually not always true. To be more precise, even when a challenged statute is held facially invalid because the applicable test of substantive constitutional law requires such a holding, it may be necessary to invoke some approach to partial unconstitutionality to limit the spillover effects of the constitutional holding. For example, the Child Online Protection Act held facially unconstitutional under the First Amendment in ACLU v. Mukasey, 534 F.3d 181, 207 (3d Cir. 2008), was not a stand-alone statute but Title XIV of an omnibus appropriations bill. See Pub. L. No. 105-277, 112 Stat. 2681 (1998). The First Amendment defects that required facial invalidation of the Child Online Protection Act had no effect on the other fifty-two titles in the omnibus bill.
237. See generally Friedman, supra note 23, at 909-17 (examining distinctive features of inseverability clauses). Unlike an inseverability clause or a substitute provision, a severability clause would yield the same result as the absence of any fallback law. For that reason, severability clauses are superfluous under my proposed approach. However, severability clauses will not be superfluous as long as courts addressing questions of partial unconstitutionality continue to adopt the current approach of imaginative reconstruction for severability questions. As long as inferences of inseverability or of some other type of fallback law are permitted, severability clauses can serve to forestall those inferences and are therefore not superfluous.
238. For example, the Bipartisan Campaign Finance Reform Act contained a "'backup' definition of 'electioneering communication,' which would become effective if the primary definition were 'held to be constitutionally insufficient by final judicial decision to support the regulation provided herein.'" McConnell v. FEC, 540 U.S. 93, 190 n.73 (quoting 2 U.S.C. § 434(f)(3)(A)(ii)). Similarly, the statute at issue in Bowsher v. Synar, 478 U.S. 714 (1986), contained a "fallback" provision to take effect if a certain statutory provision were held invalid. Id. at 735 (holding that "fallback" provisions in Balanced Budget and Emergency Deficit Control Act were effective after statute was held unconstitutional).
239. 551 F.3d 1068 (D.C. Cir. 2009).
240. 542 U.S. 466, 484 (2004).
241. Detainee Treatment Act of 2005, Pub. L. No. 109-163, § 1405(e)(1), 119 Stat. 3136, 3477 (2006) (codified at 28 U.S.C. § 2241(e) (2006)).
242. Id. § 1405(e)(2) (codified at 10 U.S.C. § 801 (2006)).
243. 548 U.S. 557, 584 (2006).
244. Military Commissions Act of 2006, Pub. L. No. 109-366, § 7, 120 Stat. 2600, 2635-36 (2006) (codified at 28 U.S.C. § 2241(e)), invalidated by Boumediene v. Bush, 128 S. Ct. 2229 (2008).
245. 128 S. Ct. at 2274.
246. See Bismullah v. Gates, 551 F.3d 1068, 1070 (D.C. Cir. 2009) ("[T]he Government argues the Congress did not intend DTA § 1005(e)(2), which gave this court alone jurisdiction to review CSRT determinations, to stand apart from the section of the Military Commissions Act (MCA) that provides no court shall have jurisdiction to hear a detainee's petition for a writ of habeas corpus ⋯.").
247. Id. at 1075 ("[W]e are confident the Congress would not have enacted DTA § 1005(e)(2) in the absence of the statutory provision banning the courts from exercising jurisdiction over a detainee's habeas petition. Because the latter provision has been held unconstitutional, the former must also fall.").
248. See id. at 1070 ("If it is evident the Congress would not have enacted one statutory provision had it known that another provision would be held unconstitutional, then the former provision cannot be severed from the latter, and the two provisions must fall together.").
249. Id. at 1072.
250. Id.
251. Bismullah, 551 F.3d at 1075.
252. Id. at 1074.
253. Id. at 1071 (quoting Boumediene, 128 S. Ct. at 2275) (internal quotations omitted).
254. Id.
255. Id. ("The parties do not dispute that the first and second requirements for severability are met-that is, DTA § 1005(e)(2) is constitutional and could function independently.").
256. See Movsesian, supra note 15, at 73-82 (recommending textual interpretation approach to severability of statutory provisions); Nagle, supra note 15, at 232-46 (arguing that general principles of statutory construction should be used to interpret severability); Shumsky, supra note 15, at 272-75 (arguing for applying clear statement rule to question of severability).
257. For an analysis of this specific issue that yields the same result as my analysis here, but by different means, see Shumsky, supra note 15, at 228-31 (noting that Court would look to legislative intent to determine severability of McCain-Feingold soft-money ban section from rest of campaign finance reform bill).
258. The Supreme Court applied a legislative intent test to hold an Executive Order inseverable in Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 190-94 (1999). The Court did not offer much reasoning to support its application of a legislative intent approach to determining the severability of an Executive Order. See id. at 191 ("Because no party before this Court challenges the applicability of [statutory severability] standards, for purposes of this case we shall assume, arguendo, that the severability standard for statutes also applies to Executive Orders.").
259. 458 U.S. 50, 87 n.40 (1982). The Court stated: We cannot conclude that, if Congress were aware that the grant of jurisdiction could not constitutionally encompass this [state law contract claim] and similar claims, it would simply remove the jurisdiction of the bankruptcy court over these matters, leaving the jurisdictional provision and adjudicatory structure intact with respect to other types of claims, and thus subject to Art. III constitutional challenge on a claim-by-claim basis. Id.
260. See Nagle, supra note 15, at 220 ("The Supreme Court has not invalidated an entire federal statute as nonseverable since the 1930s."). This statement excludes Northern Pipeline, presumably because it treats the unit of analysis as the entire statute-in that case, the Bankruptcy Act of 1978.
261. See N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 87 (1982). The holding of inseverability in Northern Pipeline was of application inseverability of a statutory provision, as in Booker. See id.
262. The last major burst of commentary and analysis surrounding severability doctrine occurred in the wake of the Court's 1983 invalidation of the legislative veto in INS v. Chadha, 462 U.S. 919 (1983). The circuits split on the severability of the legislative veto contained in the Reorganization Act. Compare EEOC v. CBS, Inc., 743 F.2d 969, 973 (2d Cir. 1984) (finding legislative veto inseverable), with EEOC v. Hernando Bank, Inc., 724 F.2d 1188, 1192 (5th Cir. 1984) (finding legislative veto provision severable), and Muller Optical Co. v. EEOC, 743 F.2d 380, 388 (6th Cir. 1984) (same). The Supreme Court held the legislative veto severable in both cases that squarely addressed the question. See Chadha, 462 U.S. at 931-35; Alaska Airlines v. Brock, 480 U.S. 678, 697 (1986).
263. I have not undertaken to quantify the decisions on a state-by-state basis, but state severability regimes function much like the federal system: A strong presumption of severability can be overcome by judicially perceived legislative intent. See Dorf, supra note 26, at 285 (describing state law as "remarkably uniform on questions of severability," with each state's practice tracking presumption that statutes are severable "unless the party claiming nonseverability can show that: (1) severance would leave an incoherent statute, or (2) the legislature would not have enacted the statute without the invalid portion").
264. In City of Boerne v. Flores, 521 U.S. 507 (1997), and United States v. Grace, 461 U.S. 171 (1983), for example, the Court invalidated the statutes so far as they were unconstitutional, but no further. In both cases, the Court neither mentioned severance nor suggested that its holding of partial unconstitutionality should occasion inseverability analysis.
265. See Stern, supra note 15, at 101-02 ("The only general conclusion which can be drawn from ⋯ [an] analysis of what the Supreme Court has both said and done ⋯ is that the Court avails itself of one formula or another in order to justify results which seem to it to be desirable for other reasons.").
266. In this respect, Booker and Northern Pipeline present a striking contrast. Whereas the Court in Northern Pipeline used inseverability to goad congressional action by expanding the consequences of the constitutional holding, the Court in Booker used a combination of severability and inseverability holdings to render unnecessary the need for congressional action. Cf. N. Pipeline, 458 U.S. at 88 ("This limited stay will afford Congress an opportunity to reconstitute the bankruptcy courts or to adopt other valid means of adjudication ⋯."); Booker, 543 U.S. at 227 ("[T]wo provisions of the Sentencing Reform Act of 1984 (SRA) that have the effect of making the Guidelines mandatory must be invalidated in order to allow the statute to operate in a manner consistent with congressional intent.").
267. Shumsky, supra note 15, at 276.
268. See Dorf, supra note 26, at 285-86 & 295 app.
269. For criticism of this presumption, see Frank H. Easterbrook, Statutes' Domains, 50 U. CHI. L. REV. 533, 536 (1983) ("To find that there is 'law' on a given subject is to endow the courts with authority they lacked before. It is therefore worthwhile to demand that, before courts begin the process of 'construction,' they ascertain that the legislature has conferred the power of interpretation.").