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Partial Unconstitutionality PARTIAL UNCONSTITUTIONALITY KEVIN C. WALSH* Courts often hold legislation unconstitutional, but nearly always only part of the statute offends. The problem of partial unconstitutionality is therefore pervasive and persistent. Yet the exclusive doctrinal tool for dealing with this problem—sever- ability doctrine—is deeply flawed. To make matters worse, severability doctrine is purportedly necessary for any workable system of judicial review. The accepted view is that severance saves: A court faced with a partially unconstitutional law must sever and excise the unconstitutional provisions or applications so that the constitutional remainder can be enforced going forward. Absent severance and excision, a law must fall in its entirety. This excision-based understanding of judi- cial review is supposedly traceable to Marbury v. Madison. In fact, this attribution is anachronistic. Moreover, the prevailing view is wrong about the distinctive func- tion of modern severability doctrine, which is not to save, but to destroy. This Article retrieves the original approach to partial unconstitutionality and develops a proposal for implementing a version of that approach. The proposal, displacement without inferred fallback law, is simultaneously ambitious and modest. It is ambi- tious because it proposes a shift in the general framework for judicial review in every case; it is modest because the proposed shift would change case outcomes in only a small set of highly consequential cases. INTRODUCTION ................................................. 739 I. EXCISION ............................................... 743 A. The Nature of Severability Doctrine ................. 743 B. The Excision-Based Approach to Judicial Review ... 745 C. Problems with Severability and Excision ............ 749 II. DOCTRINAL HISTORY ................................... 755 A. Foundations of Repugnancy Displacement .......... 755 B. Applications ........................................ 757 1. “Not the Terms of the Law But the Effect” ..... 758 2. “To the Extent of Such Collision and Repugnancy”.................................... 762 3. Occasions of Inseverability ...................... 766 C. The Stealthy Rise of Modern Severability Doctrine . 768 III. DISPLACEMENT ......................................... 777 A. Displacement Without Inferred Fallback Law ....... 778 * Copyright © 2010 by Kevin C. Walsh, Assistant Professor, University of Richmond School of Law. Thank you to Todd Aagaard, Richard Fallon, Jim Gibson, Philip Hamburger, Benjamin Hatch, Scott Hemphill, Corinna Lain, James Bernard Murphy, Chaim Saiman, Carl Tobias, and various participants in the AALS FRC for comments on and criticisms of earlier versions of this Article. I would also like to thank Greg Bell, Carolyn Wagner, and Michael Matheson for indefatigable research assistance. I am grateful for financial assistance from the Villanova University School of Law and the Uni- versity of Richmond School of Law. 738 June 2010] PARTIAL UNCONSTITUTIONALITY 739 B. Why Displacement Without Inferred Fallback Law Is Better ............................................... 784 C. Qualifications and Objections ....................... 789 CONCLUSION ................................................... 794 INTRODUCTION Many laws are unconstitutional, but 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 statute1 or a private cause of action for gender-motivated violence in a massive crime bill.2 More commonly, a statute’s unconstitutionality inheres in some applications of the statute but not others, such as a speech restriction that is uncon- stitutional as applied to speech on public sidewalks but not else- where,3 or heightened protection for religious liberty that is unconstitutional as applied to states and localities but constitutional as applied to the federal government.4 Although often unnoticed, almost every instance of judicial review presents an issue of partial unconsti- tutionality in one form or another. The problem of what to do with partially unconstitutional laws has a long pedigree. Marbury v. Madison, for instance, resulted in a holding of partial unconstitutionality.5 The Court held unconstitu- tional just one part of the Judiciary Act of 1789 (Section 13) and just some applications of that part (Supreme Court issuance of writs of mandamus in the exercise of its original jurisdiction).6 Chief Justice Marshall’s reasoning in Marbury continues to frame the problem of partial unconstitutionality today. Following Marshall’s reasoning, the question asked by a court engaged in judicial review is whether the act 1 See INS v. Chadha, 462 U.S. 919, 956–59 (1983) (invalidating Immigration and Nationality Act, Pub. L. No. 414, § 244(b), (c), 66 Stat. 163, 216 (1952)). 2 See United States v. Morrison, 529 U.S. 598, 627 (2000) (invalidating Violence Against Women Act of 1994, Pub. L. No. 103-322, § 40302(c), 108 Stat. 1796, 1941). 3 See United States v. Grace, 461 U.S. 171, 183 (1983) (invalidating in part Act of August 18, 1949, Pub. L. No. 250, § 6, 63 Stat. 616, 617 as applied to public sidewalks surrounding Supreme Court building). 4 See City of Boerne v. Flores, 521 U.S. 507, 534–36 (1997) (invalidating in part Religious Freedom Restoration Act (RFRA) of 1993, Pub. L. No. 103-141, § 6(a), 107 Stat. 1488, 1489 as applied to state and local governments). 5 5 U.S. (1 Cranch) 137, 176–80 (1803) (holding that portion of Judiciary Act of 1789 allowing Supreme Court “to issue writs of mandamus to public officers” conflicts with Constitution and is therefore void). 6 Richard H. Fallon, Jr., As-Applied and Facial Challenges and Third-Party Standing, 113 HARV. L. REV. 1321, 1337 n.91 (2000) (“[T]he Court did not invalidate that linguistic unit of the [Judiciary Act of 1789] insofar as it authorized the Supreme Court to issue writs of mandamus in the exercise of its appellate jurisdiction.”). 740 NEW YORK UNIVERSITY LAW REVIEW [Vol. 85:738 of the legislature is “void.”7 A holding of unconstitutionality is, there- fore, a holding of voidness. If a legislative act is void, how can any portion of it be enforced after a judicial pronouncement of unconstitutionality? Current law and scholarship answer that severability doctrine is the exclusive way to deal with partial unconstitutionality. 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 the constitutional remainder can be enforced going forward. Thus conceived, this judicial operation creates a new law that consists of the old law “minus” its unconstitutional provisions or applications.8 The lodestar for this severability determination is legislative intent. Because a court must not “use its remedial powers to circum- vent the intent of the legislature,”9 the court must ask before severing: “Would the legislature have preferred what is left of its statute to no statute at all?”10 If the answer is “no,” then the court should not sever but instead should declare the statute entirely invalid and enjoin its enforcement in all applications. As the doctrinal formula for determining severability reveals, the required inquiry into legislative intent is unlike many other interpre- tive inquiries, in that it asks what the legislature would have done, not what the legislature actually did.11 Thus, the doctrine leaves courts with significant discretion in deciding whether and how to sever and excise statutes. Legislatures that enact partially unconstitutional laws may not foresee their constitutional flaws and may not articulate a 7 Marbury, 5 U.S. (1 Cranch) at 177. 8 Michael C. Dorf, Fallback Law, 107 COLUM. L. REV. 303, 305 (2007) (“[A] sever- ability clause . provides that in the event that the original law is held partly invalid, a fallback of the original law minus the invalid provision or application will take effect.”); see also Richard H. Fallon, Jr., The Linkage Between Justiciability and Remedies—And Their Connections to Substantive Rights, 92 VA. L. REV. 633, 674–75 (2006) (“[T]he normal pre- sumption of constitutional law is that statutes are ‘severable’ (or, synonymously, ‘sepa- rable’): Even if a statute has unconstitutional components or would be unconstitutional as applied to particular facts, the unconstitutional elements or applications can be severed from the valid ones and the valid ones enforced.”). 9 Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 330 (2006) (quoting Califano v. Westcott, 443 U.S. 76, 94 (1979)). 10 Id. Additionally, the Court assumes that “Congress could not have intended a consti- tutionally flawed provision to be severed from the remainder of the statute if the balance of the legislation is incapable of functioning independently.” Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987). 11 See United States v. Booker, 543 U.S. 220, 246 (2005) (stating that severability depends on “what ‘Congress would have intended’ in light of the Court’s constitutional holding”) (citation omitted). June 2010] PARTIAL UNCONSTITUTIONALITY 741 preference about how to cure any constitutional flaws that they do foresee. Those who trust the judiciary to work things out by discerning the legislature’s unstated intent about a matter that it never addressed when legislating can take heart from the current approach to partial unconstitutionality. The
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