Partial Unconstitutionality

Kevin C. Walsh - University of Richmond School of Law

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What do some Reconstruction-Era civil rights laws, the first federal income tax, and various pieces of New Deal economic legislation have in common? These are all laws that the Supreme Court has held totally invalid after concluding that they were partially unconstitutional.

The doctrine through which the Supreme Court accomplished these results remains relevant today. For example, total invalidity is exactly the outcome sought by the Virginia Attorney General in challenging the individual mandate component of the recently enacted health care reform bill. Like others who have sought to invalidate wide-ranging legislation in the past, the Virginia Attorney General’s lawsuit seeks to use severability doctrine to leverage the alleged unconstitutionality of one statutory section to accomplish complete invalidation of a statute that is almost one thousand pages long. And, if the individual mandate is unconstitutional (admittedly a big “if” under current law), severability doctrine could very well enable Virginia’s slingshot lawsuit to take down the entire legislative Goliath of federal health care reform.

When a law is partially unconstitutional, severability doctrine governs whether a court may first separate out or “sever” the unconstitutional provisions or applications of a law, and then subtract or “excise” them so that the constitutional remainder can be enforced going forward. The lodestar for the severability determination is legislative intent. A court considering whether to sever asks whether the legislature would have preferred what is left of its statute after severance to no statute at all, and whether the statute can function without the unconstitutional part. If the answer to either question is “no,” then the court does not sever but instead declares the statute entirely invalid and enjoins its enforcement in all applications.

A legislature may try to control the severability determination with a severability or inseverability clause, but under current doctrine such clauses are neither necessary nor sufficient to control the judicial determination of severability. Additionally, the inquiry into legislative intent required by severability doctrine is unlike many other interpretive inquiries, in that it explicitly requires a determination of what the legislature would have done, not what the legislature actually did. The doctrine thereby leaves courts with significant discretion in deciding whether and how to sever and excise statutes.

The existence of this judicial discretion is troubling given the potency of the doctrine—severability allows the invalidation of an entire statute based on a problem with just one part. The doctrine can also enable invalidity to expand beyond unconstitutionality even when it yields the conclusion that particular statutory provisions are severable. For example, in the Supreme Court’s deployment of the doctrine in Booker v. United States,1
the Court “severed and excised” two statutory provisions—one that made the United States Sentencing Guidelines binding and another that governed appellate review of federal sentencing. As a consequence of the Court’s supposition about what the enacting Congress would have intended about a problem that Congress neither anticipated nor addressed when legislating, the Federal Sentencing Guidelines are now nonbinding even in the thousands upon thousands of cases in which binding Guidelines pose no constitutional problem.

If severability doctrine is threatening because of the significant discretion it vests in courts to invalidate a statute beyond just those uses and provisions that are unconstitutional, why do we have it? Mostly, it seems, because of the belief that we cannot do without it. Severability doctrine is thought by many to be the only way of dealing with partial unconstitutionality under the law as it now stands.

The problem is a big one because, while many laws are unconstitutional, few are entirely so. As a result, partial unconstitutionality is pervasive. Sometimes a statute’s unconstitutionality resides in a discrete textual provision, such as a legislative veto in a complex immigration statute or a private cause of action for gender-motivated violence in a massive crime bill. More commonly, a statute’s unconstitutionality inheres in some applications of the statute but not in others, such as a speech restriction that is unconstitutional as applied to speech on public sidewalks but not elsewhere, or heightened protection for religious liberty that is unconstitutional as applied to states and localities but constitutional as applied to the federal government.

The problem of what to do with partially unconstitutional laws is not only pervasive but persistent. 2 Marbury v. Madisonfor instance, resulted in a holding of partial unconstitutionality. And, though it is often unnoticed, almost every instance of judicial review in present times involves an issue of partial unconstitutionality.

Operating on the assumption that severability is inevitable in one form or another, scholars have leveled many criticisms at its doctrinal particulars and offered proposals for reform. But nothing has changed. Modern severability doctrine exists in much the same form today as when it first emerged.

This article attempts to change the terms of the debate by demonstrating that, contrary to the assumption underlying modern scholarship, the counterfactual speculation required by modern severability doctrine is not necessary to a workable system of judicial review. In fact, legislative intent–based severability analysis did not emerge until the 1850s. Before that time, there was a way to specify the scope of invalidity flowing from a holding of unconstitutionality that did not require suppositions about the enacting legislature’s intent. An examination of judicial practice in the first several decades of judicial review following Marbury reveals this method and disproves the prevailing notion that judicial review without modern severability doctrine is unworkable—a widely accepted notion that rests on an anachronistic attribution of modern severability doctrine to Chief Justice Marshall, his immediate successors on the federal bench, and their state-court contemporaries. Whatever else may be said about the first several decades of post-Marbury judicial review in the United States, it was workable. And it worked without modern hypothetical intent–based severability doctrine.

Judicial review can work that way again today. Most fundamentally, it is necessary to change the foundational metaphor that structures our thinking about judicial review—namely, a shift from excision to displacement. The familiar excision-based approach to judicial review implies that a court has the power to eliminate unconstitutional provisions by a process of subtraction. In contrast, under a displacement-based approach, a court does not excise anything from a statute but instead determines the extent to which superior law displaces inferior law in resolving the particular case before it.

After changing the foundational metaphor, a question remains about the scope of displacement. First principles dictate that superior law can displace no less of the inferior law than is repugnant to it, but what about more? The proposed approach instructs courts not to infer invalidity beyond unconstitutionality. The goal is for the enforceable law resulting from an exercise of judicial review to be traceable to a combination of constitutional command and legislative provision, rather than judicial supposition about what the legislature would have wanted.

This approach is grounded on four principles drawn from the earlier approach to partial unconstitutionality. First, the function of judicial review is to determine what law governs in the course of resolving a particular case. More specifically, judicial review is to be understood as the process of determining whether, and to what extent, the Constitution supersedes otherwise operative law in resolving the particular case before the court. Second, upon recognition of a conflict, superior law must displace inferior law, which is thereby deemed void. Third, a law may be void in part and valid in part, and the voidness of one part has no effect on the validity of the other parts. Fourth, a law is void to the extent of its conflict with the Constitution, but no further.

In the proposed approach, there is no “next step” that looks to hypothetical legislative intent. Certainly, if the partially unconstitutional statute contains an explicit fallback provision or some type of inseverability clause, that provision or clause may be given effect (as long as it is not itself unconstitutional). But for most statutes, which contain no such provision or clause, the scope of invalidity will be coextensive with the scope of unconstitutionality.

The recovery of the earlier approach to partial unconstitutionality enables a before-and-after comparison that upends the dominant view that severability doctrine saves partially unconstitutional statutes from total invalidity. Before severance doctrine emerged, displacement-based partial unconstitutionality doctrine was already functioning in this manner: Courts routinely held an unconstitutional law void to the extent of repugnancy but no further; there was no “next step” in which courts inquired into whether the legislature would have preferred no law at all to the constitutional remainder. After severance emerged, partial unconstitutionality (now seen as resulting from excision and not displacement) became dependent on the satisfaction of a legislative-intent test. The “next step” of a legislative-intent analysis injected into judicial review the possibility that invalidity extends beyond unconstitutionality. That is, whenever severability doctrine resulted in a holding of inseverability, modern severability doctrine enables total invalidity to flow from partial unconstitutionality. The doctrine does not save; it destroys.

Even in circumstances in which severability doctrine does not expand invalidity beyond unconstitutionality, its presence within an excision-based understanding of judicial review blurs the boundary between the judicial and legislative powers. Within an excision-based approach, the judicial operation of severance is understood to create a new law that consists of the old law “minus” its unconstitutional provisions or applications. Scholars steeped in this understanding comfortably refer to severability doctrine as resulting in judicial rewriting. As a description of what courts do to partially unconstitutional legislation, the imagery of severance and excision thereby underwrites a conception of the judicial role that is avowedly legislative, cementing in place a pernicious understanding of the judicial role and effacing an understanding of how courts can deal with partial unconstitutionality in a manner properly judicial.

For too long, judicial rewriting through severability doctrine has been accepted as inevitable. This perceived inevitability has kept the debate centered on how courts should rewrite statutes, bypassing entirely the antecedent question of whether they should do so. Now is the time to restore review without rewriting.


Copyright © 2010 NYU Law Review.

Kevin C. Walsh is a professor at the University of Richmond School of Law.

  1. 543 U.S. 220 (2005).
  2. 5 U.S. (1 Cranch) 137 (1803).


  • I like your suggestion. I wish you had worked through some concrete examples.

    The lay reader is not going to be able to work through your essay, although it’s clear enough to constitutional lawyers and students.

    There is, of course the problem that a big bill like health care reform is the product of many compromises. Lose the mandate, and now someone else has to pay for the other provisions.

    Posted by ab, 01.31.11 

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