Document Type
Article
Publication Date
2025
Publication Information
70 Am. J. Juris. 65 (2025).
Abstract
In US federal courts and the courts of many states, the presumption of statutory severability leads judges to separate a statute’s unlawful elements from its lawful ones. This article contends that the presumption becomes problematic when the effect of severing is to restrict the constitutional rights of a group whom the legislature exempted from regulation. Presumptive severability draws on a conception of judicial review that aspires to minimize interference with enacted legislation. But there is a countervailing constitutional interest in protecting exempted groups from restrictions on their liberty unless and until the legislature directs otherwise. It is these competing strands of constitutional theory, not a blanket presumption, that ought to drive judicial decisions on statutory severability.
Recommended Citation
Randy J. Kozel,
Severability and Liberty,
70 Am. J. Juris. 65 (2025)..
Available at:
https://scholarship.law.nd.edu/law_faculty_scholarship/1827