Several recent developments in administrative law—namely the Supreme Court’s embrace of the major questions doctrine and decision to hear a case asking it to overrule or clarify Chevron deference—have left federal agencies uncertain about how regulations will fare in litigation. Agencies adapting to this uncertainty may want to pay closer attention to recent case law on administrative severability, which allows a court to sever the invalid portion of a rule while leaving the rest intact.
This recent case law indicates that boilerplate severability clauses may not convince a court to find a rule severable. Instead, to improve the chances that a court will find a rule severable, agencies should consider including more specific discussions of severability in the rule’s supporting analyses. They should also consider addressing severability at all stages of the rulemaking process—from the initial proposal to the final rule.