Also known as: severability · severable · severability clause · severability doctrine
Written by attorneys — see sources below.
A judicial doctrine that permits a court to strike only the unconstitutional portions of a statute while preserving the remainder when the valid provisions can function independently and the legislature would have enacted them without the invalid parts.
Scott Summers owns a parcel damaged when Sterling Manufacturing's equipment severs a fixture attached to the land. A statute governing recovery contains an unconstitutional clause limiting damages to the entire parcel value. The court severs the invalid clause and permits Summers to recover the loss in value to the fixture alone under the remaining provisions.
The City of Hialeah enacts an ordinance with multiple sections restricting animal sacrifice. One section violates the Free Exercise Clause. The court severs that section because a severability clause shows the city council would have passed the remaining regulatory provisions without it.
In April 1987 the Church of the Lukumi Babalu Aye, Inc., a not-for-profit corporation organized under Florida law in 1973 whose president is Ernesto Pichardo, leased land in Hialeah, Florida, and announced plans to build a house of worship, school, cultural center, and museum at which members would practice Santeria. Santeria originated in nineteenth-century Cuba as a fusion of Yoruba traditions and Roman Catholicism. It centers on animal sacrifice performed by cutting the carotid arteries, after which the animals are usually cooked and eaten except in healing and death rituals. The announcement prompted the Hialeah City Council to convene an emergency public session on June 9, 1987. At that session residents and council members voiced strong opposition to Santeria practices. The council then adopted Resolution 87-66 declaring opposition to religious acts inconsistent with public morals, peace, or safety and passed Ordinance 87-40 incorporating Florida's animal-cruelty statute that criminalizes unnecessary or cruel killing of animals. After the Florida attorney general issued an opinion that ritual animal sacrifice other than for food consumption violated state law, the council in August 1987 adopted Resolution 87-90 opposing ritual animal sacrifice. In September 1987 the council enacted three further ordinances. Ordinance 87-52 barred possession of animals with intent to use them for ritual sacrifice except by licensed food establishments. Ordinance 87-71 directly prohibited any person from sacrificing an animal within city limits. Ordinance 87-72 restricted slaughter of animals to properly zoned slaughterhouse premises while exempting small-scale commercial hog and cattle operations. The Church and Pichardo filed suit against the city and its officials in the United States District Court for the Southern District of Florida under 42 U.S.C. § 1983. They alleged that the ordinances violated their rights under the Free Exercise Clause. After granting summary judgment to the individual defendants on immunity grounds, the district court conducted a nine-day bench trial on the remaining claims and entered judgment for the city. The Court of Appeals for the Eleventh Circuit affirmed in a one-paragraph per curiam opinion. The Supreme Court granted certiorari.
View caseCongress enacts an immigration statute containing a legislative veto provision later held unconstitutional. The Court severs the veto clause because the remainder of the statute can operate independently and Congress would have enacted the balance without the veto mechanism.
In 1966 Jagdish Rai Chadha, an East Indian born in Kenya who held a British passport, was lawfully admitted to the United States on a nonimmigrant student visa that expired on June 30, 1972. In October 1973, the District Director of the Immigration and Naturalization Service informed Chadha that he had remained longer than permitted and was therefore deportable. Chadha conceded deportability but applied for suspension under section 244(a)(1) of the Immigration and Nationality Act of 1952. On June 25, 1974, an Immigration Judge acting on behalf of the Attorney General suspended Chadha's deportation and adjusted his status to permanent resident after finding that he satisfied the statutory criteria of seven years' continuous presence, good moral character, and extreme hardship. A report of the suspension was transmitted to Congress as required by the Act. On December 16, 1975, the House of Representatives passed a resolution disapproving the suspension for Chadha and five other aliens on the ground that they did not meet the statutory requirements, particularly as to hardship. Pursuant to the House resolution, the Immigration Judge reopened the deportation proceedings. Chadha moved to terminate them on constitutional grounds, but the Immigration Judge ruled that he lacked authority to declare the resolution unconstitutional and ordered Chadha deported. Chadha appealed to the Board of Immigration Appeals, which likewise held that it had no authority to pass on the constitutionality of the resolution and dismissed the appeal. Chadha then filed a petition for review in the United States Court of Appeals for the Ninth Circuit. The Immigration and Naturalization Service appeared and urged the court to hold the House resolution unconstitutional. After inviting briefs from the Senate and House as amici curiae, the Court of Appeals held the resolution unconstitutional because it was a legislative act that failed to satisfy the requirements of Article I, sections 1 and 7, and set aside the deportation order. The Supreme Court granted certiorari in the consolidated cases to address the constitutional question.
View caseA federal election statute includes a provision regulating certain contributions later found to violate the First Amendment. The Court severs that provision because the remaining contribution limits and disclosure rules can function independently and Congress would have passed them alone.
The Bipartisan Campaign Reform Act of 2002 amended the Federal Election Campaign Act of 1971, the Communications Act of 1934, and other statutes to address the role of soft money and issue advocacy in federal elections. Plaintiffs included a diverse group of entities and individuals such as the National Rifle Association and the American Civil Liberties Union who alleged that BCRA was unconstitutional. Defendants included the Federal Election Commission and the Attorney General of the United States. The case was filed in the United States District Court for the District of Columbia and heard by a three-judge panel pursuant to special procedures in BCRA Section 403. The District Court received a voluminous record from the parties and issued a judgment on May 1, 2003, that upheld some provisions of BCRA and invalidated others. All losing parties filed direct appeals to the Supreme Court within ten days, and the Court noted probable jurisdiction on June 5, 2003, ordering expedited briefing and argument on September 8, 2003. More than a century of federal legislation preceded BCRA, beginning with the Tillman Act of 1907 that banned corporate contributions in connection with federal elections. Congress later extended prohibitions to unions, required disclosure of contributions and expenditures, and enacted FECA in 1971 with further amendments in 1974 that imposed contribution limits, expenditure ceilings, and created the FEC. The Supreme Court addressed constitutional challenges to the 1974 amendments in Buckley v. Valeo. After Buckley, the FEC permitted political parties to fund mixed-purpose activities such as voter registration and generic advertising in part with soft money not subject to FECA's source and amount limits. Soft-money fundraising by the national parties grew from $21.6 million in 1984 to $498 million in 2000, with large corporate and union donations often motivated by a desire for access to federal candidates. National parties transferred substantial soft money to state parties, which could use higher percentages for mixed activities under FEC allocation rules. The use of soft money also supported so-called issue ads that avoided express advocacy of a candidate's election or defeat and therefore fell outside FECA's disclosure and source restrictions. These ads frequently aired in the 60 days before federal elections, referred to clearly identified candidates, and were funded by corporations, unions, and tax-exempt organizations using misleading names. A Senate investigation into 1996 federal election practices documented both parties' use of soft money to obtain special access for large donors and the coordination of issue ads with candidates. The District Court compiled extensive evidence from declarations, expert reports, and internal party documents showing that federal officeholders solicited soft-money donations, that parties maintained tallies crediting donors to particular candidates, and that large soft-money contributions were often made to secure influence rather than for ideological reasons.
View caseA statute creating an accounting oversight board contains an unconstitutional tenure protection for board members. The Court severs the tenure provision because the board can continue to operate under the remaining statutory framework and Congress would have enacted the balance without the invalid clause.
In 2002 Congress enacted the Sarbanes-Oxley Act, which created the Public Company Accounting Oversight Board as a five-member entity appointed by the Securities and Exchange Commission. The Board oversees audits of public companies and possesses authority to inspect registered accounting firms, initiate investigations, and issue sanctions. Beckstead and Watts, LLP, a Nevada accounting firm, registered with the Board. The Board inspected the firm, released a report critical of its auditing procedures, and began a formal investigation. Free Enterprise Fund, a nonprofit organization of which the firm is a member, and Beckstead and Watts sued the Board and its members, the Commission, and the United States in federal district court. They sought declaratory and injunctive relief alleging that the Board's structure violated the Constitution. The district court determined it had jurisdiction and granted summary judgment to the defendants. The Court of Appeals for the District of Columbia Circuit affirmed the district court's judgment in full. The Supreme Court granted certiorari.
View caseA state statute imposes sterilization on certain offenders and contains an additional classification later held to violate equal protection. The Court severs the invalid classification because the core sterilization authority can stand alone and the legislature would have enacted the remainder without the unconstitutional part.
In 1926 Jack T. Skinner was convicted of stealing chickens and sentenced to the Oklahoma State Reformatory. In 1929 he was convicted of robbery with firearms and sentenced to the reformatory. In 1934 he was convicted again of robbery with firearms and sentenced to the penitentiary. In 1935 the Oklahoma legislature passed the Habitual Criminal Sterilization Act. The statute defined an habitual criminal as a person who had been convicted two or more times for crimes amounting to felonies involving moral turpitude. This conviction could occur in an Oklahoma court or in a court of any other State. The person must thereafter be convicted of such a felony in Oklahoma and sentenced to a term of imprisonment in an Oklahoma penal institution. The Act excluded offenses arising out of the violation of the prohibitory laws, revenue acts, embezzlement, or political offenses from its terms. It provided for proceedings by the Attorney General in Oklahoma courts for a judgment that the person be rendered sexually sterile by vasectomy in the case of a male or salpingectomy in the case of a female. This judgment would follow if the court or jury found the person was an habitual criminal and the operation could be performed without detriment to general health. In 1936, while Skinner was confined in the penitentiary, the Attorney General instituted proceedings against him under the Act. A jury trial was held in which the court instructed the jury that the crimes of which Skinner had been convicted were felonies involving moral turpitude. The only question was whether the operation of vasectomy could be performed without detriment to his general health. The jury found that it could be. The trial court entered judgment directing that the operation be performed on Skinner. The Supreme Court of Oklahoma affirmed the judgment by a five to four decision. The United States Supreme Court granted the petition for certiorari because the decision raised grave and substantial constitutional questions.
View caseA severability clause creates a presumption that the legislature intended the valid portions to remain in effect. Courts still examine whether the remainder can function independently. The clause is not conclusive when the invalid provision is so intertwined with the valid provisions that severance would distort legislative intent.
A court will refuse severance when the valid and invalid provisions are not severable in text or function. If the remainder cannot operate as the legislature intended or if the statute would not have been enacted without the invalid part, the entire statute falls.
Courts first attempt to construe a statute to avoid unconstitutionality. Only after finding a provision unconstitutional do they apply severability analysis to determine whether the remainder survives.