ArtIII.S2.C1.3.2.7 Disallowance by Statutory Interpretation

Article III, Section 2, Clause 1:

The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

If it is possible to construe a statute so that its validity can be sustained against a constitutional attack, a rule of prudence is that it should be so construed, 1 even though in some instances this "constitutional doubt" maxim has caused the Court to read a statute in a manner that defeats or impairs the legislative purpose. 2 Of course, the Court stresses that "[w]e cannot press statutory construction ‘to the point of disingenuous evasion’ even to avoid a constitutional question." 3 The maxim is not followed if the provision would survive constitutional attack or if the text is clear. 4 Closely related to this principle is the maxim that, when part of a statute is valid and part is void, the courts will separate the valid from the invalid and save as much as possible. 5 Statutes today ordinarily expressly provide for separability, but it remains for the courts in the last resort to determine whether the provisions are separable. 6


  1.  Bond v. United States, 572 U.S. ___, No. 12-158, slip op. (2014); United States v. X-Citement Video, Inc., 513 U.S. 64, 69 (1994); Rust v. Sullivan, 500 U.S. 173, 190-91 (1991); Pub. Citizen v. DOJ, 491 U.S. 440, 465-67 (1989) (quoting Crowell v. Benson, 285 U.S. 22, 62 (1932)); Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988).
  2.  E.g., Michaelson v. United States, 266 U.S. 42 (1924) (narrow construction of Clayton Act contempt provisions to avoid constitutional questions); United States v. Harriss, 347 U.S. 612 (1954) (lobbying act); United States v. Seeger, 380 U.S. 163 (1965): Welsh v. United States, 398 U.S. 333 (1970) (both involving conscientious objection statute).
  3.  United States v. Locke, 471 U.S. 84, 96 (1984) (quoting Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379 (1933)).
  4.  Rust v. Sullivan, 500 U.S. 173, 191 (1991); but compare id. at 204-07 (Justice Blackmun dissenting), and 223-225 (Justice O’Connor dissenting). See also Peretz v. United States, 501 U.S. 923, 929-930 (1991).
  5.  Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987); Pollock v. Farmers' Loan & Trust Co., 158 U.S. 601, 635 (1895); but see Baldwin v. Franks, 120 U.S. 678, 685 (1887), now repudiated. Griffin v. Breckenridge, 403 U.S. 88, 104 (1971). In Kimbrough v. United States, 128 S. Ct. 558, 577 (2007), Justice Thomas, dissenting, referred to "our longstanding presumption of the severability of unconstitutional applications of statutory provisions."
  6.  See Whole Woman’s Health v. Hellerstedt, 579 U.S. ___, No. 15-274, slip op. at 37 (2016) (noting that while as a "general matter" courts will honor a legislature’s preference with regard to severability, severability clauses do not impose a requirement on courts that are confronted with facially unconstitutional statutory provisions, as such an approach would "inflict enormous costs on both courts and litigants" in parsing out what remains of the statute); see also Ayotte v. Planned Parenthood of N. New Eng., 546 U.S. 320, 329 (2006) (discussing how a severability clause is not grounds for a court to "devise a judicial remedy that . . . entail[s] quintessentially legislative work."); Reno v. ACLU, 521 U.S. 844, 884-85 n.49 (1997) (noting the limits on how broadly a court can read a severability clause); see generally Dorchy v. Kansas, 264 U.S. 286, 290 (1924) (concluding that a severability clause is an "aid merely; not an inexorable command.")