Document Type
Article
Publication Date
Fall 2025
Abstract
This Article examines the Supreme Court’s evolving severability doctrine and interrogates whether severability is best understood as a canon of statutory construction or as a constitutional limitation on judicial power. Tracing the doctrine from Marbury v. Madison through modern cases such as Champlin Refining Co., Carter Coal, INS v. Chadha, Alaska Airlines, Booker, and Seila Law, the Article demonstrates that the Court has oscillated between an interpretive presumption favoring preservation of legislative enactments and a structural concern about judicial lawmaking. It distinguishes between textual severability—excising unconstitutional statutory provisions—and application severability—limiting unconstitutional applications while preserving statutory text. The modern two-part test, focusing on functional operability and legislative intent, reflects this dual character. Ultimately, the Article argues that severability now operates as a barometer of judicial restraint: expansive when preserving landmark legislation, yet cautious when structural constitutional principles or administrative power are implicated. Severability thus occupies a doctrinal crossroads, functioning simultaneously as a tool of statutory interpretation and a constitutional boundary on remedial authority.
Recommended Citation
Amy L. Moore, Splitting the Statute: Severability as a Canon of Construction or Constitutional Concern?, 75 Cath. U. L. Rev. 50 (Fall 2025).
