McGeorge Adjunct Professor Chris Micheli outside the California State Capitol

On occasion, a bill reader may come across a severability or savings clause contained in a California bill. Basically, the severability clause is a statement by the Legislature that if a part of a law that’s enacted is subsequently held to be invalid or unconstitutional, then the unconstitutional provision doesn’t invalidate the rest of the remaining law.

A general rule that’s been developed and applied by the courts over a long period of time is that if a portion of a statute is invalidated or declared unconstitutional, then generally the remaining portions of the statute remain valid and enforceable. In other words, they stand on their own.

On the other hand, the courts have ruled that if those remaining portions are somehow completely dependent on the stricken portions or those portions of the statute that were invalidated or ruled unconstitutional, then all the remaining portions, the entire statute, is somehow deemed invalid then.

So why are severability clauses used in legislation? In some instances, the Legislature wants a statute to stand or fall on its own. In fact, sometimes a bill drafter may insert a non-severability clause at or near the end of a bill to avoid a court interpretation that might allow a statute to remain in effect after a portion of the statute has been invalidated by the courts.

There is another school of thought in bill drafting that a severability clause is unnecessary for legal purposes because, again, the courts have repeatedly ruled that generally, regardless of whether a severability clause is absent or is present in a statute, that historically the courts will just sever the invalid portions and keep the remaining valid portions alive and well. What that means is that some observers argue that a severability clause is not necessary because, again, both statutes and common law or court decisions, make statutory provisions severable by their nature.

You can read the transcript of today’s podcast here.

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