Also known as: severability · severable · severability clause · severability doctrine
Written by attorneys · grounded in primary & secondary sources — see 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.
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Congress 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.
A 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.
A 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.
A 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.
A 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.
…those states which enact it. "SECTION 4. [ Short Title. ] This Act may be cited as the Uniform Abortion Act. "SECTION 5. [ Severability. ] If any provision of this Act or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this Act which…