Statutory Interdependence in Severability Analysis

According to conventional wisdom, when a court rules a statutory provision unconstitutional, it must sever that provision or strike down the entire statute. This understanding is incomplete. In practice, courts may engage in compound severance: invalidating additional, otherwise constitutional provisions of the statute without striking down the entire statute. They reason that the degree of interrelation between those provisions is so significant that severance of one compels severance of the other. As a result, a subset of the statute remains law. The power to craftsuch subsets raises constitutional concerns, and yet the jurisprudence concerning statutory interdependence is inconsistent and unclear.Courts analyze provisions for interdependence in three distinct ways: by divining congressional purpose, speculating the terms of the legislative bargain, and searching for textual evidence of congressional intent. Greater predictability in this area would alleviate constitutional concerns and better ensure democratic accountability. This Note argues for adoption of a "qualified clear statement rule" in which courts only find related provisions interdependent either when Congress has provided a clear statement to that effect or when allowing a related provision to have effect would result in an objectively irrational law. It then applies this rule to resolve a circuit split concerning severability of the Food and Drug Modernization Act. The qualified clear statement rule not only is consistent with the Court's severability test but also would provide better guidance to courts evaluating provisions for statutory interdependence as well as limit instances of judicial overreach.INTRODUCTIONWhen a court rules a statutory provision in a complex piece of legislation unconstitutional, it must decide whether to retain or invalidate the remaining provisions of the statute. Severability doctrine governs this determination.1 While severability of statutes is often discussed as an all-ornothing proposition, with commentators focusing on whether statutory remainders should be saved or struck in their entirety,2 there are, in fact, three possible outcomes. First, a court can sever only the unconstitutional provision, which I call "simple severance." Second, it can sever the unconstitutional provision along with some constitutional provisions but without striking down the entire statute, which I call "compound severance." In each of these two outcomes, a court allows some statutory remainder to have legal effect. Finally, it can strike down the entire statute, which I call "total invalidation."3 The Supreme Court's test presumes that provisions are severable, meaning that normally a court should simply excise the unconstitutional provision and leave the rest of the statute intact.4 This presumption of simple severability can be rebutted by a finding of statutory interdependence-that is, a finding that the relationship between two or more statutory provisions is so significant that severance of one provision compels severance of the other.5The Court has indicated that statutory interdependence exists in two circumstances. The first is when Congress intended certain provisions to be inseverable from each other.6 The second is when certain provisions are legally inoperable without the unconstitutional provision.7 Assuming that Congress would not have intended to enact a legally inoperable statute, the two circumstances necessarily overlap.8 Partly for this reason, the Court has stated that congressional intent is the primary focus of severability and statutory-interdependence analysis.9Lower courts, however, have struggled in applying the congressionalintent inquiry to statutory interdependence. Despite the considerable inconsistency in this area, three basic approaches among lower courts have emerged. Some adopt a purpose-centered approach that asks, "What might Congress have wanted?" Some focus on the legislative bargain and ask, "What could Congress have passed? …