Severability Doctrine and the Exercise of Judicial Review

Abstract

One of the most important doctrines a constitutional court must consider when exercising judicial review is severability. If a court decides that a statutory provision is unconstitutional, it must also decide whether that provision may be severed from the statute to allow the remainder to carry the full force of law. While the use of severability by constitutional courts has generated substantial controversy among legal scholars, there has been scant empirical analysis evaluating their claims of how courts employ severability doctrine. Relying on both legal and social science scholarship, I craft a series of hypotheses about how courts use severability. I test these hypotheses on the U.S. Supreme Court’s constitutional decisions on important federal statutes over the post-war period. The analysis shows that both political and legal considerations influence the Court’s severability doctrine, simultaneously fueling and allaying the criticisms of the legal community.