The Two Requirements That Determine If an Unconstitutional Statute Can Be Severed

In June 2020, the Supreme Court ruled 5-4 in Seila Law v. CFPB that the leadership structure of the Consumer Financial Protection Bureau violated the Constitution, yet the agency itself survived. Two years earlier, in the 2018 case Murphy v. NCAA, the Court found a federal restriction on state sports betting unconstitutional, and the entire 1992 statute was struck down. The single respect in which the two cases differ is the application of the severability doctrine—a remedial framework that determines whether an unconstitutional provision can be excised while leaving the remainder of the law intact.[5][6]

When a federal court determines that a statutory provision is unconstitutional, it does not automatically invalidate the entire legislative act. Instead, the court applies a 2-part test to decide whether the flawed text can be severed. The doctrine rests on 2 distinct requirements: the remaining provisions must be fully operative as a law, and the court must conclude that the legislature would have preferred the modified statute to no statute at all.[1][2]

The first requirement, operability, asks a mechanical question about the surviving text. Once the unconstitutional language is removed, the remaining statute must be capable of functioning independently. If excising a provision leaves a regulatory scheme incoherent or impossible to execute, the entire law must fall. As legal scholars note, severability is fundamentally a question of what the law is, requiring judges to determine the combined legal effect of a statute and the Constitution.[1][4]

The second requirement hinges on legislative intent. Courts must attempt to discern whether the Congress that passed the law would have enacted the surviving provisions without the unconstitutional portion. This inquiry often forces judges to engage in historical counterfactuals. In the 2012 case NFIB v. Sebelius, the Supreme Court struck down the coercive elements of the Medicaid expansion but preserved the rest of the 974-page Affordable Care Act, concluding that Congress would have wanted the broader healthcare framework to survive.[2][5]

To guide this judicial inquiry, Congress frequently includes explicit severability clauses within complex legislation. These clauses state that if any part of the act is held invalid, the remainder shall not be affected. While such text provides compelling evidence of legislative intent, it is not an absolute guarantee. The Supreme Court treats severability clauses as a strong presumption that the legislature intended for the valid portions to endure, but courts will still strike down a law if the operability requirement fails.[1][3]

The doctrine is frequently defended as a pillar of judicial restraint. By saving the valid parts of a statute, courts avoid gratuitously destroying the legislature's handiwork. Chief Justice John Roberts articulated this principle in the 2020 Seila Law decision, writing that it is "clear that Congress would prefer that we use a scalpel rather than a bulldozer in curing the constitutional defect."[2][5]

However, the practice has drawn sustained criticism for blurring the line between interpreting law and writing it. When a court severs a provision, it effectively creates a new statutory scheme that was never voted on by the legislature. Critics argue that this remedial power authorizes judicial lawmaking, allowing courts to rewrite statutes in the service of saving them. This tension transforms severability from a mere interpretive canon into a profound question about the limits of Article III judicial power.[3][4]

In recent decades, the Supreme Court has heavily favored severance, using the doctrine to preserve massive legislative packages and the administrative state. From severing a 2015 exception from the 1991 Telephone Consumer Protection Act, to preserving the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, the Court has consistently excised narrow constitutional defects rather than dismantling entire regulatory regimes. The doctrine ultimately forces a choice between 2 imperfect outcomes: striking down perfectly valid laws because they are attached to invalid ones, or allowing courts to construct a statutory reality that Congress never actually passed.[1][3][6]