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Full-Text Articles in Law
The Doctrine Of Severability In Constitutional Review: A Perspective From Singapore, Benjamin Joshua Ong
The Doctrine Of Severability In Constitutional Review: A Perspective From Singapore, Benjamin Joshua Ong
Research Collection Yong Pung How School Of Law
The Singapore Court of Appeal’s decision in Prabagaran a/l Srivijayan v Public Prosecutor represents a substantial development in Singapore’s law on the doctrine of severability in constitutional review. An examination of Prabagaran reveals rich theoretical underpinnings relating to the nature of legislative intent. The case rightly locates the crux of the severability inquiry in secondary legislative intention, i.e. the legislature’s intention, at the time a statute was enacted, as to what should happen in the event that part of the statute is later held to be unconstitutional. This approach is preferable to the approach of asking whether excision of unconstitutional …
Severability, John C. Nagle
Severability, John C. Nagle
John Copeland Nagle
When a court holds a provision of a statute unconstitutional, a question remains regarding the validity of the remainder of the statute. The court may find that the unconstitutional provision may be severed from the statute and leave the remainder of the statute in effect. Alternatively, the court may hold that the unconstitutional provision cannot be severed and invalidate the entire statute. This article argues that the jurisprudence surrounding the issue of severability is confusing and inconsistent. After explaining the concept of severability and its ramifications for statutes, I trace the development of the current judicial test for determining when …
Litigating Federal Health Care Legislation And The Interstices Of Procedure, Wendy Collins Perdue
Litigating Federal Health Care Legislation And The Interstices Of Procedure, Wendy Collins Perdue
University of Richmond Law Review
No abstract provided.
Sense And Severability, Tobias A. Dorsey
Sense And Severability, Tobias A. Dorsey
University of Richmond Law Review
No abstract provided.
Severability Of Statutes, Tom Campbell
Severability Of Statutes, Tom Campbell
Tom Campbell
Courts legislate when they engage in "severability analysis", allowing part of a law to continue in force, after having struck down other parts as unconstitutional. This is flawed for the same reason that the legislative veto and the executive line-item veto are flawed. All involve creating a legislative outcome without the joint approval of both houses and the executive. The practice derives from an analogy to contract enforcement, where a court will try to preserve part of a contract when the rest is unenforceable. However, the analogy is imperfect because Congress and the state legislature remain in a position to …
Partial Unconstitutionality, Kevin C. Walsh
Partial Unconstitutionality, Kevin C. Walsh
Law Faculty Publications
Courts often hold legislation unconstitutional, but nearly always only part of the statute offends. The problem of partial unconstitutionality is therefore pervasive and persistent. Yet the exclusive doctrinal tool for dealing with this problem--severability doctrine-is deeply flawed. To make matters worse, severability doctrine is purportedly necessary for any workable system of judicial review. The accepted view is that severance saves: A court faced with a partially unconstitutional law must sever and excise the unconstitutional provisions or applications so that the constitutional remainder can be enforced going forward. Absent severance and excision, a law must fall in its entirety. This excision-based …
Facial And As-Applied Challenges Under The Roberts Court, Gillan E. Metzger
Facial And As-Applied Challenges Under The Roberts Court, Gillan E. Metzger
Fordham Urban Law Journal
Resistance to facial challenges is a recurring theme of the Roberts Court’s early years. Yet close analysis of the Court’s decisions suggests that its approach to facial and as-applied challenges is largely consistent with prior practice. Despite occasional description of as-applied challenges in narrow terms, it has expressly preserved the possibility that as-applied challenges could be brought pre-enforcement and allowed an as-applied challenge to be the vehicle for broad relief. It has also followed the Rehnquist Court in asserting wide remedial discretion to sever statutes to fit constitutional requirements, and even its strategic use of the facial/as-applied distinction is not …
Section Five Overbreadth: The Facial Approach To Adjudicating Challenges Under Section Five Of The Fourteenth Amendment, Catherine Carroll
Section Five Overbreadth: The Facial Approach To Adjudicating Challenges Under Section Five Of The Fourteenth Amendment, Catherine Carroll
Michigan Law Review
In February 1996, the New York State Department of Transportation fired Joseph Kilcullen from his position as a snowplow driver in the Department's Highway Maintenance training program. Alleging that the state discharged him because of his epilepsy and learning disability, Kilcullen sued his former employer under the Americans with Disabilities Act ("ADA"), which abrogated states' sovereign immunity and permitted private suits for damages against states in a federal court. Kilcullen asserted only that he was not treated the same as similarly situated non-disabled employees; his claim did not implicate the ADA's requirement that employers provide "reasonable accommodation" to disabled employees. …
Severability, John C. Nagle
Severability, John C. Nagle
Journal Articles
When a court holds a provision of a statute unconstitutional, a question remains regarding the validity of the remainder of the statute. The court may find that the unconstitutional provision may be severed from the statute and leave the remainder of the statute in effect. Alternatively, the court may hold that the unconstitutional provision cannot be severed and invalidate the entire statute.
This article argues that the jurisprudence surrounding the issue of severability is confusing and inconsistent. After explaining the concept of severability and its ramifications for statutes, I trace the development of the current judicial test for determining when …
The Severability Of Legislative Veto Provisions: An Examination Of The Congressional Budget And Impoundment Control Act Of 1974, Steven W. Pelak
The Severability Of Legislative Veto Provisions: An Examination Of The Congressional Budget And Impoundment Control Act Of 1974, Steven W. Pelak
University of Michigan Journal of Law Reform
This Note examines the constitutionality of the legislative veto provision (section 1013(b)) in the Congressional Budget and Impoundment Control Act, and discusses section 1013(b)'s and Title X's severability from the Act. Part I demonstrates that Chadha invalidates section 1013(b). Part II outlines the traditional severability doctrine. Part III proposes a refined model of the severability doctrine with which to resolve severability conflicts involving legislative veto provisions. Part IV applies the proposed severability model to the Congressional Budget and Impoundment Control Act, and concludes that section 1O13(b)'s unconstitutionality requires that the entire Congressional Budget and Impoundment Control Act fall.
Re-Separating The Powers: The Legislative Veto And Congressional Oversight After Chadha, Kim I. Moses
Re-Separating The Powers: The Legislative Veto And Congressional Oversight After Chadha, Kim I. Moses
Cleveland State Law Review
This Note will initially trace the historical setting in which Chadha v. Immigration and Naturalization Service was decided. In light of the staunch defense of and radical opposition to the veto, the Court's decision will then be analyzed in terms of its scope as well as its potential ramifications. The major focus will concern the future of existing laws which presently embody legislative vetoes, whether they are valid despite these provisions, and how the future of congressional oversight may be affected by the potential demise of the legislative veto. Finally, this Note will recommend a proposal by which the legislature …