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Full-Text Articles in Law
Introduction To Constraining The Executive, Tom Campbell
Introduction To Constraining The Executive, Tom Campbell
Tom Campbell
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 …