term limits + regularized appointments + severability (so if term limits get struck down, the court just no longer has a fixed size -- you keep the regularized appointments)
July 15, 2025 at 2:15 PM
term limits + regularized appointments + severability (so if term limits get struck down, the court just no longer has a fixed size -- you keep the regularized appointments)
Nyet!
But even if it was right on the premise, it was more importantly wrong on severability.
But even if it was right on the premise, it was more importantly wrong on severability.
February 11, 2026 at 11:35 PM
Nyet!
But even if it was right on the premise, it was more importantly wrong on severability.
But even if it was right on the premise, it was more importantly wrong on severability.
They forgot to add a severability clause to the contract so it’s all or nothing. I would sign immediately and then call my union & a lawyer.
February 4, 2025 at 2:34 AM
They forgot to add a severability clause to the contract so it’s all or nothing. I would sign immediately and then call my union & a lawyer.
The policy also includes a severability clause and clauses to abide by federal and state laws. Folks can read it here.
I have requested a meeting with the Attorney General to discuss.
I have requested a meeting with the Attorney General to discuss.
April 14, 2025 at 11:32 PM
The policy also includes a severability clause and clauses to abide by federal and state laws. Folks can read it here.
I have requested a meeting with the Attorney General to discuss.
I have requested a meeting with the Attorney General to discuss.
Facebook reminded me that it was 6 years ago today that Reed O’Connor issued that preposterous opinion on the ACA’s unconstitutionality and lack of severability.
December 14, 2024 at 9:53 PM
Facebook reminded me that it was 6 years ago today that Reed O’Connor issued that preposterous opinion on the ACA’s unconstitutionality and lack of severability.
It would be total chaos as a policy outcome, but it's what follows from the claimed reasoning. Instead the Court, in the guise of severability, goes slicing and dicing statutes in a way that effectively amounts to rewriting them to suit its political preferences.
June 29, 2026 at 5:23 PM
It would be total chaos as a policy outcome, but it's what follows from the claimed reasoning. Instead the Court, in the guise of severability, goes slicing and dicing statutes in a way that effectively amounts to rewriting them to suit its political preferences.
No question now this comes out 6-3. My only question is how fractured is the majority: severability, can agencies have *some* members who are "independent", etc.
December 8, 2025 at 5:38 PM
No question now this comes out 6-3. My only question is how fractured is the majority: severability, can agencies have *some* members who are "independent", etc.
"Hey, it has a severability clause"
June 3, 2026 at 12:22 PM
"Hey, it has a severability clause"
Hey shocks! Just read this and I agree with my brother counsel on this. Which might be less damaging IF THEY PUT IN A SEVERABILITY CLAUSE
February 4, 2025 at 1:26 AM
Hey shocks! Just read this and I agree with my brother counsel on this. Which might be less damaging IF THEY PUT IN A SEVERABILITY CLAUSE
That executive order is pioneering in the genre of legal irony. The severability and savings clauses basically render it a dead letter.
February 19, 2025 at 7:51 AM
That executive order is pioneering in the genre of legal irony. The severability and savings clauses basically render it a dead letter.
Scarsi alluded to severability in the context of Biden's pardon of Hunter and the waning hours of 12/1!
Judge Scarsi writes an amusingly nitpicky order acknowledging Joe Biden's pardon of his son Hunter. He spends 34 lines weighing whether the pardon, signed 12/1 for conduct "through" 12/1, presents a legal problem for however many hours remained in that day. storage.courtlistener.com/recap/gov.us...
![The clemency warrant pardons Mr. Biden “[f]or those offenses against the United
States which he has committed or may have committed or taken part in during the period
from January 1, 2014 through December 1, 2024,” including the charges prosecuted in
this case. (Reply Ex. A (emphasis added).) The President signed the pardon on
December 1, 2024. (Id.) Because the period of pardoned conduct extends “through” the
date of execution, the warrant may be read to apply prospectively to conduct that had
not yet occurred at the time of its execution, exceeding the scope of the pardon power.
Under the canon of constitutional avoidance, the Court declines to interpret the warrant
in that manner and instead understands the warrant to pardon conduct through the time
of execution on December 1. Clark v. Suarez Martinez, 543 U.S. 371, 380–81 (2005)
(“[W]hen deciding which of two plausible statutory constructions to adopt, a court must
consider the necessary consequences of its choice. If one of them would raise a](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:qrllvid7s54k4hnwtqxwetrf/bafkreiaozy2c2gdlvuheda2rdp43hfqt75o6p4pm2mkc74f5jij4xsnxfq)
![multitude of constitutional problems, the other should prevail—whether or not those
constitutional problems pertain to the particular litigant before the Court.”); see United
States v. Davis, 588 U.S. 445, 494–95 (2019) (Kavanaugh, J., dissenting) (collecting
cases for the proposition “that courts should construe ambiguous laws to be consistent
with the Constitution”); see also Ex parte Endo, 323 U.S. 283, 298 (1944) (construing
executive order “as we would approach the construction of legislation”); but see FCC
v. Fox TV Stations, Inc., 556 U.S. 502, 516 (2009) (“We know of no precedent for
applying [the canon of constitutional avoidance] to limit the scope of authorized
executive action.”); City & County of San Francisco v. Trump, 897 F.3d 1225, 1238
(9th Cir. 2018) (“In contrast to the many established principles for interpreting
legislation, there appear to be few such principles to apply in interpreting executive
orders.”).
To the extent the pardon encompasses prospective conduct, the Court deems the
prospective component of the pardon severable from the component that demands the
termination of this proceeding. See Minnesota v. Mille Lacs Band of Chippewa Indians,
526 U.S. 172, 191 (1999) (“Because no party before this Court challenges the
applicability of these standards, for purposes of this case we shall assume, arguendo,
that the severability standard for statutes also applies to Executive Orders.”). The
warrant explicitly brings the charges in this action within the ambit of the pardon,
indicating presidential intent for the pardon to apply to this case even if it is
unconstitutional in other respects. See id. at 191–92 (discussing whether the president
intended an order “to stand or fall as a whole”).
IT IS SO ORDERED.
Dated: December 3, 2024
MARK C. SCARSI
UNITED STATES DISTRICT JUDGE](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:qrllvid7s54k4hnwtqxwetrf/bafkreigzrt7onmpwg6b4365w5anju6egaf5baqtq63acd3tynci74es7vy)
December 5, 2024 at 5:30 AM
Scarsi alluded to severability in the context of Biden's pardon of Hunter and the waning hours of 12/1!
Texas AG, recognizing that arguments are not going great, is leaning into severability, saying that problematic parts can just be trimmed out. But CJ Richman seems skeptical about what parts could remain.
March 20, 2024 at 4:03 PM
Texas AG, recognizing that arguments are not going great, is leaning into severability, saying that problematic parts can just be trimmed out. But CJ Richman seems skeptical about what parts could remain.
Roberts: what about an agency that is 85% judicial? is there a principle to separate out the rest and allow judicial functions to go on?
Sauer: that's a severability question, but for mine run of most agencies, they are CLEARLY exercising exec power
Sauer: that's a severability question, but for mine run of most agencies, they are CLEARLY exercising exec power
December 8, 2025 at 3:22 PM
Roberts: what about an agency that is 85% judicial? is there a principle to separate out the rest and allow judicial functions to go on?
Sauer: that's a severability question, but for mine run of most agencies, they are CLEARLY exercising exec power
Sauer: that's a severability question, but for mine run of most agencies, they are CLEARLY exercising exec power
like set aside what you might think about the legislative veto's constitutionality, the ruling on severability is just demented on its face
September 18, 2026 at 4:04 PM
like set aside what you might think about the legislative veto's constitutionality, the ruling on severability is just demented on its face
promises made promises kept
Trump DOJ Lawyer Correctly Describes Congress’s History of Circumcising Presidential Power
During oral argument in the cases about Trump’s executive orders targeting law firms, a Justice Department lawyer brought up a very different form of severability.
ballsandstrikes.substack.com
May 15, 2026 at 6:02 PM
promises made promises kept
For what it's worth, he's right on severability. The removal protections aren't unconstitutional, but if you conclude they are, then the answer is Congress has to go back to the drawing board, not the court gets to in effect make up new agencies Congress didn't create and give them to the president.
December 8, 2025 at 5:43 PM
For what it's worth, he's right on severability. The removal protections aren't unconstitutional, but if you conclude they are, then the answer is Congress has to go back to the drawing board, not the court gets to in effect make up new agencies Congress didn't create and give them to the president.
I don't agree with basically anything that the Trump Justice Department is doing, but facts are facts, and when DOJ lawyers stand there in open court and assert that Congress has never "circumcised" the president's power to decide who gets a security clearance, they're absolutely right
Trump DOJ Lawyer Correctly Describes Congress’s History of Circumcising Presidential Power
During oral argument in the cases about Trump’s executive orders targeting law firms, a Justice Department lawyer brought up a very different form of severability.
ballsandstrikes.substack.com
May 15, 2026 at 6:01 PM
I don't agree with basically anything that the Trump Justice Department is doing, but facts are facts, and when DOJ lawyers stand there in open court and assert that Congress has never "circumcised" the president's power to decide who gets a security clearance, they're absolutely right
Perry asks defense to, by Friday, go over the specific chants at issue, suggest limitations and revisit severability.
May 18, 2026 at 6:44 PM
Perry asks defense to, by Friday, go over the specific chants at issue, suggest limitations and revisit severability.
And the more “reasonable” version that cuts off some of the dictator powers does so by using the judiciary to smother large parts of the administrative state by nondelegation or non-severability.
July 10, 2026 at 4:04 PM
And the more “reasonable” version that cuts off some of the dictator powers does so by using the judiciary to smother large parts of the administrative state by nondelegation or non-severability.
Hot take: they never would, but if you had Gorsuch and Barrett on severability, the liberals should join with them to make that the majority opinion, and then go write a "concurrence" that's really just the dissenting opinion you would have otherwise written.
December 8, 2025 at 5:49 PM
Hot take: they never would, but if you had Gorsuch and Barrett on severability, the liberals should join with them to make that the majority opinion, and then go write a "concurrence" that's really just the dissenting opinion you would have otherwise written.
lol I think they’re reading our posts because they’ve now added ADEA and severability language to the agreement.
NEW: A week after OPM purported to offer a deferred resignation program for almost the entire federal workforce — and two days before the Trump admin's self-imposed deadline for it — OPM just had to send out a memo addressing the "Legality of Deferred Resignation Program." chcoc.gov/sites/defaul...
February 4, 2025 at 6:49 PM
lol I think they’re reading our posts because they’ve now added ADEA and severability language to the agreement.
This is great. The part about severability is particularly interesting... and pernicious. You end up with an executive power ratchet where you only need a majority to delegate but a supermajority to take it back.
July 21, 2025 at 6:22 PM
This is great. The part about severability is particularly interesting... and pernicious. You end up with an executive power ratchet where you only need a majority to delegate but a supermajority to take it back.
In a Note, Sophia Caldera advances a novel interpretation of the APA's judicial review provision as instructing courts to sever regulations where possible, arguing that this preference for severability is a critical step as agency actions become more vulnerable to judicial second-guessing.
Regulatory Severability | Stanford Law Review
www.stanfordlawreview.org
June 1, 2026 at 10:37 PM
In a Note, Sophia Caldera advances a novel interpretation of the APA's judicial review provision as instructing courts to sever regulations where possible, arguing that this preference for severability is a critical step as agency actions become more vulnerable to judicial second-guessing.
Severability doctrine
October 15, 2023 at 6:17 PM
Severability doctrine
imo the actual structure of this should be (1) senior status after 18 years + (2) no replacement for early retirements (3) regularized appointments + (4) no set size of the court + (5) a thorough severability provision making every piece severable from the others
May 28, 2024 at 4:13 PM
imo the actual structure of this should be (1) senior status after 18 years + (2) no replacement for early retirements (3) regularized appointments + (4) no set size of the court + (5) a thorough severability provision making every piece severable from the others