Severability and the Erie Doctrine

“Severability” doctrine holds that where a statute is partially unconstitutional, a reviewing court can excise the unconstitutional part rather than declare the entire statute invalid, if consistent with legislative intent. The doctrine figures centrally in a broad array of constitutional litigation, including ongoing litigation over the “individual mandate” provision of the Patient Protection and Affordable Care Act. And the doctrine is powerful because the viability of large statutory schemes can hinge entirely on whether an unconstitutional component is severable.

But while important, severability is in many ways perplexing and underexplored. No one has come up with a fully satisfying test for determining when severance is appropriate. And no one, as far as I can tell, has critically examined choice-of-law rules pertaining to the doctrine’s application.

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The Constitutional Right of Recall

The largest newspaper in Wisconsin, the Milwaukee Journal-Sentinel, continues to take the editorial position that the public’s right to recall elected officials should only be exercised in cases of misfeasance in office or of criminal conduct.  The editorial page actively disparages the use of the recall process in cases where voters simply disagree with the policy choices of their elected representatives.  Recent examples of this editorial position can be seen here, and in the decision to excerpt a similar editorial published by the newspaper USA Today here.  On this past Sunday, Steven Walters commented in the Journal-Sentinel on possible amendments to the Wisconsin Constitution intended to modify the existing recall provisions and to bring them into line with the more limited scope advocated by these editorials.

I have commented on this issue before.   The editorial position of the Milwaukee Journal-Sentinel is misguided.  In particular, in editorializing against the exercise of the recall power, the Journal-Sentinel fails to account for both the specific text of the Wisconsin Constitution and the understanding of the recall power among the founding generation of our country.  The key to understanding the proper scope of the recall power is the basic conception of “the sovereignty of the people.”

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Trying to Hire a Hit Man? Don’t Answer Your Cell Phone

A new Seventh Circuit decision underscores the jurisdictional breadth of the federal murder-for-hire statute, 18 U.S.C. § 1958(a). Although solicitation to commit murder would seem a prototypical state offense, it can be prosecuted federally if money was involved and a “facility of interstate commerce” was used. And it takes very little indeed to satisfy the latter element.

For instance, in the new Seventh Circuit case, United States v. Mandel (No. 09-4116), the defendant planned a hit on his business partner with one of his employees, who turned out to be a confidential informant. A jury convicted Mandel on six counts of violating § 1958(a). In four, the “use of a facility of interstate commerce” was a cell phone conversation with the c.i. (three of which were actually initiated by the c.i.). In the other two, the “use of a facility of interstate commerce” was driving around in a car with the c.i. while the hit was discussed.

In all of these counts, what triggers federal jurisdiction seems only incidental to the offense; it is not the use of a cell phone or a car that made the defendant’s conduct dangerous and his intentions blameworthy. Mandel would merit no less punishment if he had communicated with the c.i. by sign language or smoke signals, or if he had gotten around by roller-skating. It is this lack of a meaningful connection between the jurisdictional element and the wrongfulness of the defendant’s conduct that gives federal prosecution such an arbitrary character in so many cases. But, for better or worse, that is where we are in the modern world of Commerce Clause jurisprudence. (Note, though, the Supreme Court’s efforts to maintain some sort of principled limitations on federal criminal jurisdiction in its interesting decision last term in Fowler v. United States.)

Mandel contested the jurisdictional issues on appeal, but to no avail.

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