Fallback Law

Abstract

Legislatures sometimes address the risk that a court will declare all or part of a law unconstitutional by including "fallback" provisions that take effect on condition of such total or partial invalidation. The most common kind of fallback provision is a severability clause, which effectively creates a fallback of the original law minus its invalid provisions or applications, but fallback law can also take the form of substitute provisions. Whether phrased in terms of severance or substitution, fallback law gives rise to serious constitutional and policy questions. When does a fallback cure the defects of the original provision? Should legislatures be permitted to adopt punitive fallbacks designed to coerce the courts into sustaining otherwise questionable provisions? Does the use of a fallback violate the legislator's duty, if any, of independent constitutional judgment? What court's decision should trigger the substitution of a fallback for the original provision, and for what parties? These questions lack easy answers because fallback law operates in the midst of institutional conflict: Upon finding a law unconstitutional, a court must do its best to implement the remaining will of the very legislature that enacted the invalid law; a legislature in crafting fallback law must do its best to anticipate how the courts will respond; yet in the American system of separation of powers, each institution has at best a limited ability to predict or control how the other will respond to its work product.

Keywords: fallback, unconstitutional, invalidation, severability, substitution