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Culture War Roundup for the week of August 26, 2024

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I addressed the mirage of this decision only applying to Allegheny and Philadelphia counties below. As to the severability question, any severability or non-severability clause in a statute is going to be ignored by courts. This has been true for a long time, in every jurisdiction. Courts in Pennsylvania and elsewhere have all but completely invalidated these clauses. If this seems sophistic to you, there are legitimate public policy reasons for the courts' stance. Consider the following: Congress passes a law with several provisions that are clearly, unequivocally, unconstitutional. The law also includes a provision saying that if any part of the law is ruled unconstitutional than every law passed by congress since 1890 is unconstitutional as well; the ultimate non-severability provision. I don't think we disagree that it would be ridiculous for a court to uphold such a provision. Now lets consider a less dramatic and perhaps more on-point example. Suppose the PA election law that was at issue here was part of a comprehensive electoral reform bill that completely replaced all prior election law, which was repealed in a separate bill. The new law includes a non-severability provision. Should any successful challenge result in the complete scrapping of an entire state's election laws? If there are clearly unconstitutional provisions in that law, should the courts be forced to either let them stand or concede total electoral chaos? There's obviously a line here somewhere, and the courts have repeatedly ruled that the only way to determine where it is is on a case-by-case basis. They strike down entire laws only when it's clear that the problematic provisions are essential to the law itself. They aren't going to let legislatures poison pill their way into keeping unconstitutional laws on their books.

The entire state’s elections wouldn’t vanish overnight because the non-severability provision would also apply to the part of the comprehensive election reform law that repealed the prior election law.

The statement that courts ignore severability is also absolutely wild, considering severability questions have been a major part of many Supreme Court cases (which is relevant, considering your example related to Congress). I’m not going to go trawling for more, but off the top of my head, this was the case for the NFIB case upholding Obamacare and the Reno case that effectively created the modern Internet by invalidating almost all of the Communications Decency Act.

I’d also agree with @anti_dan that it is reprehensible behavior even if it were true, so it shouldn’t matter if it is truly some norm amongst judges, as you claim.

The entire state’s elections wouldn’t vanish overnight because the non-severability provision would also apply to the part of the comprehensive election reform law that repealed the prior election law.

I specifically said that they repealed it in a separate bill.

The statement that courts ignore severability is also absolutely wild, considering severability questions have been a major part of many Supreme Court cases (which is relevant, considering your example related to Congress). I’m not going to go trawling for more, but off the top of my head, this was the case for the NFIB case upholding Obamacare and the Reno case that effectively created the modern Internet by invalidating almost all of the Communications Decency Act.

I'm not going to regurgitate it here, but Stilip v. Commonwealth (905 A.2d 918, 970) goes into an extensive analysis of why courts aren't required to strictly interpret clauses relating to severability. It basically boils down to a separation of powers issue: The legislature can't dictate to courts how they will analyze a case. They can provide such statements to demonstrate intent, but that's as far as it goes. The US Supreme Court ruled similarly, IIRC, in a case where the statute said that the court would use strict scrutiny as the standard of review, and the court basically said that you can't legislate the standard of review. The cases you reference are just examples where the court applied severability provisions. There's no conclusive ruling stating that courts are strictly bound by that language when deciding severability questions.

While your interpretation is what the courts actually do in practice, I find it fairly reprehensible. The court doesn't know that the severability clause (terminating all American law prior to 1890) isn't what the legislators actually wanted in the beginning. They are engaged in mind reading by not sticking to pure textual readings and saying "this is what the legislators told us they wanted".