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03/29/2022

William Baude: Severability First Principles
Michael Ramsey

William Baude (University of Chicago - Law School) has posted Severability First Principles (Virginia Law Review, Vol. 109, 2023 forthcoming) (54 pages) on SSRN.  Here is the abstract:

The Supreme Court has decided a number of cases involving severability in the last decade, from NFIB v. Sebelius and Murphy v. NCAA to Seila Law v. CFPB, Barr v. AAPC, United States v. Arthrex, California v. Texas and Collins v. Yellen. The analysis has not been consistent, the Justices have not been able to agree, and the results have not been intuitive. Some of the Justices have proposed a revisionist approach, but they too have been unable to agree on what it requires.

This article proposes a return to first principles. Severability is a question of what the law is. Severability also includes two principles of constitutional law: that judges should enforce the law, and that the Constitution displaces ordinary law that is repugnant to it. And it also includes principles of non-constitutional law: that validly enacted statutes are law if they are not repugnant to the Constitution, that unenacted hopes and dreams are not, and that Congress may legislate for contingencies.

Much of the time, these principles lead to a simple bottom line: effectively complete severability, rebutted only by an inseverability clause or something else with the force of law. There are also harder cases where the bottom line is not so simple, but where the first principles of severability will nonetheless lead the way – the relevance of unconstitutional removal restrictions, the nonconstitutional law that re-solves unconstitutional combinations, and the relevance of severability to standing and other procedural questions.

At Legal Theory Blog, Larry Solum says: "Highly recommended.  An important contribution.  Download it while it's hot!"

Professor Baude presented an earlier version of this paper  at the 2022 Originalism Works-in-Progress conference in San Diego (with commentary from Tara Grove from the University of Alabama law school). It all sounded right to me -- and also, although the paper does not trumpet its originalism, I thought its analysis was entirely consistent with, and indeed probably compelled by, originalist principles.