Disregarding Severability

The infirmities of severability doctrine have elicited increased attention at the Supreme Court. In his application of severability doctrine for a five-Justice majority in United States v. Arthrex, Inc., Chief Justice Roberts began to reformulate the doctrine in a way that can free the Court from the misleading mental imagery conjured by the conception of courts as “severing” provisions from a statute. Roberts's reformulation more properly depicts the relevant judicial activity to be judicial disregard of statutory rules to avoid unconstitutional applications of law rather than judicial severance of textual provisions to fix a problem that inheres in the statute itself. The cleanest way to complete the task begun in Arthrex is for a Court majority to explicitly adopt disregard as a replacement for severance.

One promising path toward completing the shift from severance to disregard would be through the Court's explicit repudiation of the litigation-expanding technique that William Baude has described as “bank-shot” standing. This technique should instead be recognized and rejected as impermissible “Jenga-loser” standing. Parties should not be able to topple statutes by inviting courts to pull out provisions that do not apply to them.