C. Vered Jona · April 2008
76 GEO. WASH. L. REV. 698 (2008)
Congress passing a law regulating abortion is not surprising. Nor is it surprising that President Bush signed the statute into law. Even less surprising, perhaps, is that the law was immediately challenged in three federal courts as unconstitutional under the Supreme Court’s decisions in Planned Parenthood of Southeastern Pennsylvania v. Casey and in Stenberg v. Carhart. What may be surprising, however, is that Congress had reason to think that the Partial-Birth Abortion Ban Act of 2003 (“PBABA”)7 was unconstitutional at the time it was passed.
What role should such legislative knowledge of constitutional infirmity play in a court’s review of a statute? In cases where the entire statute is unconstitutional, congressional knowledge of constitutional infirmities is of little importance. If the whole statute is unconstitutional, the whole statute falls.
How should courts respond, however, in cases where only one provision of the statute is constitutionally invalid, but the legislature clearly knew that the specific provision was unconstitutional? Ordinarily, courts employ a presumption of severability to deal with isolated unconstitutional provisions: they presume that unconstitutional language or an unconstitutional application of general language can and should be severed from the remainder of the statute, while allowing the rest of the law to be enforced. In the face of clear congressional knowledge of the constitutional infirmity of a statutory provision (or purposeful inclusion of a provision known to be constitutionally infirm), however, courts should abandon the presumption of severability and strike down the entire statute. As detailed below, rejecting the presumption of severability in these cases complements the longstanding doctrine of judicial restraint by limiting courts’ ability to meddle with the text of a statute. Additionally, by refusing to sever unconstitutional provisions or applications in these cases, courts will increase legislators’ accountability for the constitutional ramifications of their actions
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, overbreadth, 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.
