I recently received this excellent question from a reader:
I have heard you repeatedly on different media outlets including Ricochet podcasts and I greatly respect your opinion. I have no constitutional or legal background, but something about last week's Supreme Court discussions has stuck in my head and doesn't make sense.
Why is it constitutional for judges to carve up legislation when one component is deemed to be unconstitutional when the president cannot carve out legislative items using the line item veto? I understand the arguments against the line item veto, but I don't understand why they don't apply to the notion of severability and the judiciary. In both cases, what winds up as the resulting law does not meet the constitutional definition - passed by both houses of Congress and signed by the President.
My current fear is that the Court just decided they could do this, and no one has ever challenged that ... and who would you challenge it to? It seems that the society and government we have simply believes that if the Supreme Court does something, like certain Papal statements, it is infallible and is, by definition, constitutional.
Can you help?
I think the reader raises a great point. It seems to me that it is a greater exercise of judicial power for courts to sever parts of a law as unconstitutional, but to leave other parts of it intact. To sever a law requires a court not just to rewrite a law, but to try to reconstruct what Congress would have done if it had considered whether any part of the law was struck down. A court would have to try to rebalance the delicate compromises behind any significant legislation. Congress can easily fix the problem by attaching a severability clause to any legislation or by enacting a general severability statute that could provide the default for all laws. Until then, the courts give greater respect to the legislature by asking Congress to make clear its own wishes, rather than letting the courts freelance the answer.