Charles W. Tyler (Yale Law School) & E. Donald Elliott (Yale Law School) have posted Administrative Severability Clauses on SSRN. Here is the abstract:
This Article explores a topic that has been overlooked by legal scholars: severability clauses in administrative regulations. Administrative severability clauses are an important tool for agencies to minimize the havoc wreaked by judicial review. Agencies should be encouraged to use them, and courts should give them more deference than they do severability clauses in legislation. We make two proposals that, if adopted, would bring the doctrine more in line with the overarching goals of administrative law. First, we propose that agencies should be encouraged to include severability clauses in their rules. We argue that severability clauses make the regulatory environment more participatory and predictable by giving stakeholders the opportunity to comment and by explaining to regulatees how agency rules will affect them in the future. Second, we propose that federal courts should defer to severability clauses in administrative regulations. Federal courts tend to disregard administrative severability clauses because they have analyzed them through the distorting prism of severability clauses in legislation. We contend, however, that courts should not treat administrative and statutory severability clauses the same. In Congress, severability clauses are often thrown in to far-reaching statutes that are drafted in several distinct iterations, by several different committees, whose legislative staff often lack the time and expertise to consider fully the clauses’ many potential ramifications. One could reasonably think, in other words, that congressional staff are institutionally ill-equipped to really mean it when they include a severability clause in a statute. By contrast, administrative agencies are more unified organizations that operate in a narrower regulatory space and whose staffs have the time and expertise to fully consider the potential consequences of a severability clause. The analogy between statutory and administrative severability clauses, therefore, is misplaced. Finally, we make the affirmative case for taking administrative severability clauses at face value. We argue that, as a matter of both policy and law, courts should defer to administrative severability clauses, except when the remainder of a rule is tainted by other legal defects. As a matter of policy, courts should defer to severability clauses for two reasons. First, deferring to administrative severability clauses because doing so promotes political accountability, administrative expertise, predictability in the law and reduces agency ossification. As a matter of law, courts should defer to administrative severability clauses because the severability of an administrative rule falls within an agency’s “informed discretion” and because severability clauses are valid interpretations of agency rules and thus deserve Auer deference.