Disregarding Severability

Abstract

The infirmities of severability doctrine have elicited increased attention at the Supreme Court. In his application of severability doctrine for a five-Justice majority in United States v. Arthrex, Inc., Chief Justice Roberts began to reformulate the doctrine in a way that can free the Court from the misleading mental imagery conjured by the conception of courts as “severing” provisions from a statute. Roberts\u27s reformulation more properly depicts the relevant judicial activity to be judicial disregard of statutory rules to avoid unconstitutional applications of law rather than judicial severance of textual provisions to fix a problem that inheres in the statute itself. The cleanest way to complete the task begun in Arthrex is for a Court majority to explicitly adopt disregard as a replacement for severance. One promising path toward completing the shift from severance to disregard would be through the Court\u27s explicit repudiation of the litigation-expanding technique that William Baude has described as “bank-shot” standing. This technique should instead be recognized and rejected as impermissible “Jenga-loser” standing. Parties should not be able to topple statutes by inviting courts to pull out provisions that do not apply to them