Emory Law Journal


Eric S. Fish


The Supreme Court currently operates under the premise that if it finds one part of a law unconstitutional, it can strike down other parts as well. But it is not clear where the Court finds this power to declare laws inseverable. And that lack of clarity has created a doctrinal muddle wherein the Court applies several inconsistent tests. Three such theories are implicit in the current judicial doctrine and academic debate about severability: (1) that it is an equitable remedial power, akin to the power to issue a civil injunction; (2) that it is a variant of intentionalist statutory interpretation, wherein courts strike down further provisions of a partially unconstitutional law so as to preserve the legislators¿ hypothetical intentions; and (3) that it is a judicial contract remedy applied to legislative deals. This Article explores these three theories, teasing out their respective logics and showing that they are implausibly broad and inconsistent with Article III of the Constitution. This Article then develops and defends a fourth, narrower theory: that a court can declare a statute inseverable only where the legislature has made one part of the statute conditional on the continued validity of another.