Professor John Harrison
83 GEO. WASH. L. REV. 56
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 facilitated 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 treating it as such can lead courts into error.
