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69 Drake L. Rev. 273 (2021)
To Sever or Not to Sever: Mixed Guidance from the Roberts Court

handle is hein.journals/drklr69 and id is 297 raw text is: TO SEVER OR NOT TO SEVER: MIXED GUIDANCE FROM THE ROBERTS COURT Slade Mendenhall* & Brian Underwood** ABSTRACT In its 2019-2020 term, the U.S. Supreme Court attempted to clarify its severability jurisprudence in two cases: Seila Law, LLC v. Consumer Financial Protection Bureau and Barr v. American Association of Political Consultants. This Article argues these opinions by Chief Justice John Roberts and Justice Brett Kavanaugh only further muddied the waters on severability, sending inconsistent signals as to the role of legislative intent in severability decisions. However, the competing theory of Justices Clarence Thomas and Neil Gorsuch is clearer in its guidance but might lack the historical support that its advocates claim. The result, after much spilled ink, is a failure to move the needle on how the Court will handle an important question of statutory interpretation going forward. TABLE OF CONTENTS I. Introduction ...........................................................................................273 II. The Two Tiers of the Severability Debate.........................................276 A. To Sever or Not to Sever ..............................................................277 B. If We Sever-What Then?............................................................279 III. Conflicts in the Roberts-Kavanaugh Approach................................281 IV. Historical Doubts in the Thomas-Gorsuch Approach......................286 A. Thomas's Critiques of Severability ..............................................287 B. Trouble in the Academic Literature............................................289 V. Conclusion..............................................................................................294 I. INTRODUCTION The doctrine of severability has a long pedigree in U.S. constitutional and statutory interpretation, and scholarship on the doctrine is voluminous. Nonetheless, questions persist both as to its constitutionality and proper * Robert A. Levy Fellow in Law and Liberty, Antonin Scalia Law School, George Mason University. ** Associate, Bryan Cave Leighton Paisner, LLP. 273

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