A court determines whether a statute is severable (or separable) in order to decide one of two different questions: When part of the law is unconstitutional, should the court hold the entire statute invalid, or merely the offending part? When the law can be applied validly to the litigant in court, should the court nonetheless hold the law invalid because it is capable of being applied unconstitutionally to others?
The first question was presented in carter v. carter coal co. (1936). Congress had regulated coal prices and the wages and hours of coal miners. After holding the wage and hour regulations invalid, the Supreme Court posed the severability issue in the usual way, as a question of legislative intent : if Congress had known the wage and hour provisions would be held invalid, would it still have regulated prices? Congress had stated plainly that if any part of the coal act were held invalid, the rest of the law remained effective. Nonetheless, the Court said, the price controls were so closely related to the labor provisions that Congress would not have enacted them alone. The price controls were thus invalid, whether or not they would have been valid if considered by themselves. The issue of severability calls into play the same kind of judgment employed in judicial review of the constitutionality of legislation.
Carter involved a federal statute. When a state law presents a similar question of severability, the Supreme Court ordinarily leaves that question to the state courts. However, a state statute may present the Court with the second type of severability issue. When a state law is invalid on its face—for example, under the first amendment doctrine of overbreadth—the Court refuses to enforce the law because of its potential unconstitutional application to persons not in court. This practice moderates the effect of the rule denying a litigant standing to raise other persons' legal rights.
Kenneth L. Karst
Monaghan, Henry P. 1982 Overbreadth. Supreme Court Review 1982:1–39.
Note 1984 Severability of Legislative Veto Provisions: A Policy Analysis. Harvard Law Review 97:1182–1197.
Stern, Robert L. 1937 Separability and Separability Clauses in the Supreme Court. Harvard Law Review 51:76–128.
"Severability." Encyclopedia of the American Constitution. . Encyclopedia.com. (August 19, 2019). https://www.encyclopedia.com/politics/encyclopedias-almanacs-transcripts-and-maps/severability
"Severability." Encyclopedia of the American Constitution. . Retrieved August 19, 2019 from Encyclopedia.com: https://www.encyclopedia.com/politics/encyclopedias-almanacs-transcripts-and-maps/severability
Encyclopedia.com gives you the ability to cite reference entries and articles according to common styles from the Modern Language Association (MLA), The Chicago Manual of Style, and the American Psychological Association (APA).
Within the “Cite this article” tool, pick a style to see how all available information looks when formatted according to that style. Then, copy and paste the text into your bibliography or works cited list.
Because each style has its own formatting nuances that evolve over time and not all information is available for every reference entry or article, Encyclopedia.com cannot guarantee each citation it generates. Therefore, it’s best to use Encyclopedia.com citations as a starting point before checking the style against your school or publication’s requirements and the most-recent information available at these sites:
Modern Language Association
The Chicago Manual of Style
American Psychological Association
- Most online reference entries and articles do not have page numbers. Therefore, that information is unavailable for most Encyclopedia.com content. However, the date of retrieval is often important. Refer to each style’s convention regarding the best way to format page numbers and retrieval dates.
- In addition to the MLA, Chicago, and APA styles, your school, university, publication, or institution may have its own requirements for citations. Therefore, be sure to refer to those guidelines when editing your bibliography or works cited list.