Severability, Inseverability, and the Rule of Law

41 Harv. J. on Legis. 227 (2004)March 18, 2019By: Mike Shumsky

The pending decision on the constitutionality of the Bipartisan Campaign Finance Reform Act (BCRA) prompts the question of whether the Supreme Court should allow BCRA’s increases in hard-money spending limits to stand if BCRA’s ban on soft-money is declared unconstitutional-that is, whether the Court should “sever” the soft-money ban from any remaining constitutional components of this sweeping legislation. In this Article, Michael D.  Shumsky argues that, when confronted with unambiguous directives either to sever or to invalidate a statute in its entirety, federal courts are bound by constitutional norms to give full effect to these statutory provisions, including the severability clause Congress enacted as part of BCRA. In the absence of a clear congressional directive regarding severability, Shumsky contends that principles of judicial restraint point toward severing partially unconstitutional statutes

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