Conditionality as Opposed to Inseverability

Eric Fish has given us a most engaging defense of a proposal to allow severability of statutes in almost all cases. In comparison with the current Supreme Court standard, Fish argues that he does not have courts engage in the difficult task of interpreting congressional intent. Instead, he would allow severability as the default, with only very limited exceptions where the legislative branch has indicated inseverability. Of course, the best way to prevent judges from acting as legislators is to prevent them from treating something that was not passed by the legislature as law.

The only way to do that, with one hundred percent certainty, is to follow a rule of inseverability, which I advocated in my article, Severability of Statutes, to which Mr. Fish offers some critical attention. So, if the 'main benefit' truly is to constrain judges, inseverability wins over severability every time. With inseverability, the court voids a statute, and Congress gets to legislate anew.