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No Severance Clause


If any part of a Bill that becomes Law is determined to be unconstitutional, then the whole Law shall be unconstitutional.

No Severance Clause: Proposed Language

If any part of a Bill which becomes Law is determined to be unconstitutional, the whole Law shall be unconstitutional.


It is common practice for both lawyers and legislatures to put a “savings clause” in contracts and statutes to the effect that if any portion of the document is determined to be invalid, then the balance of the document shall continue to be valid. The result is that courts are left to enforce the document, even though some portion of it was determined to be invalid. This, in turn, causes one to wonder whether the document would ever have been approved in the first instance if the portion that was later established to be invalid had not earlier been included. Of course, this practice obscures what the real intention of the parties was. 

In order to promote and encourage responsibility in the drafting and approval of legislation, we believe the law should be that, if any portion of the legislation is later determined to be unconstitutional, the entire legislation shall be deemed invalid. This requires that Congress act responsibly and not clutter its legislation with risky features. These features should be included in separate legislation or separate laws.

Many will be reminded of certain discussion regarding the Affordable Care Act related to, whether the entire law is unconstitutional if the individual mandate portion is unconstitutional. This is an issue the Supreme Court will have to deal with if it rules that the individual mandate is unconstitutional.

Overall, we believe this proposed amendment will make Congress more responsible and diligent in passing laws and will eliminate the inclusion in otherwise worthy legislation of provisions that, if found to be invalid, would invalidate the entire legislation.

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