This Patterico post on severability in the context of Obamacare expresses what I’ve thought for a long time. If the courts strike down a law as unconstitutional, then in the absence of any severability provision that says exactly what should remain, the court should strike down the bill in its entirety. Anything else is an arrogation of legislative authority.
Unfortunately, that not what the courts do. Instead, they try to find some constitutional subset of the bill that the Congress might have passed instead. But this is precisely what the courts are not competent to decide: to resolve the political question of what Congress is willing to do.
Firstly, the Supreme Court does not have the necessary insight to answer the question. No one does. Even members of Congress who have legislated for decades cannot predict what Congress will do. But, secondly, even if they did have the insight, legislating is a dynamic process, not a static process. Put in computer science terms, the legislative branch maintains a state, and that state is altered by the legislative process. Allegiances shift, favors change hands, special elections are won and lost. Even if the Court could simulate that process, it certainly could not enact its result.
Instead, the Supreme Court sets itself the task of acting as a secondary legislature, tasked with drawing up, using only the delete key, a new bill that holds together under the Court’s various rules. They have no business doing so.
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