Ryan Scoville (Marquette University Law School) has posted The New General Common Law of Severability on SSRN. Here is the abstract:
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The doctrine of “severability” holds that where a statute is partially unconstitutional, a reviewing court can excise the unconstitutional part rather than declare the entire statute invalid, if consistent with legislative intent. Severability figures centrally in a broad array of constitutional litigation, including ongoing litigation over the “individual mandate” provision of the Patient Protection and Affordable Care Act. Nevertheless, the doctrine remains underexplored. In particular, no commentator has thoroughly examined choice-of-law rules pertaining to its application. This Article aims to fill that void. The Article contends that, in two recent decisions, the Supreme Court quietly established the severability of state statutes in federal court to be a matter of general federal common law, and that this doctrine is not only inexplicably inconsistent with dozens of cases decided since Erie Railroad Co. v. Tompkins, but also displaces a large body of diverse state law without constitutional authorization or any supporting federal interest. The new doctrine thus challenges standard accounts of the limits of federal common law and calls into question the contemporary vitality of Erie’s principle of judicial federalism. The Article closes by proposing an alternative that would harmonize the precedent, help to revitalize Erie, and honor the bounds of Article III judicial power.