Breyer's Judicial Review, Part II

In an earlier post, I noted what seems like a wild departure from the court's regular power of severability in judicial review. Breyer's Booker opinion doesn't just sever the unconstitutional part of the statute, but attempts to incorporate Booker I into a new scheme that "would deviate less radically from Congress' intended system."

Breyer's authority (Welsh v. United States (a concurring opinion), Heckler v. Mathews (a footnote), and Sloan v. Lemon) for his proposition that "sometimes severability questions . . . can arise when a legislatively unforeseen constitutional problem requires modification of a statutory provision as applied in a significant number of instances" still has me absolutely puzzled. All three cases speak in terms of an extension/nullification dichotomy--that either the Court can sever unconstitutional provisions or applications or nullify the whole statute. None of these cases decides to "modify" the statute the way Breyer does.

And I have no idea why Breyer cited Adrian Vermeule's article. Here is the footnote he cited:

There is a common misconception that severability analysis refers only to the severance of provisions or subsections enumerated or labeled independently in the official text of the statute. In fact, however, severability problems arise not only with respect to different sections, clauses or provisions of a statute, but also with respect to applications of a particular statutory provision when some (but not all) of those applications are unconstitutional. From the standpoint of severability analysis, the labeling of statutory provisions--labeling often determined by legislative drafting offices or codifiers rather than by legislators themselves--bears little substantive import. Moreover, severability clauses in federal statutes often treat severance of provisions and severance of applications identically. Accordingly, courts and commentators have for the most part treated severance of invalid statutory provisions and severance of invalid applications of a particular statutory provision as governed by similar principles. Because any possible differences between the two types of severance are irrelevant for present purposes, this article follows the standard practice and refers generally to "severability." (internal citations ommitted)

I don't see what this adds. No one (I think) is arguing that the problem with Breyer's "modification" is that it is an unconstitutional application of the statute that is being severed as opposed to an actual provision. The issue is modification v. severance, not whether an as-applied invalidity is comparable to a facial invalidity in the context of separation.

I must be missing something . . .