About a month ago, the New Yorker published Killing Habeas Corpus, Jeffrey Toobin's profile of Senator Specter's take on the Military Commissions Act (aka 'The Torture Bill'). It contained a revealing fact about the Senator, a fact whose significance Toobin seemed to have missed. Toobin quotes Specter as saying,

Specter is hoping the courts will restore the rights of the detainees to bring habeas cases. “The bill was severable. It has a severability clause. And I think the courts will invalidate it,” he told me. “They’re not going to give up authority to decide habeas-corpus cases, not a chance.”

Trouble is, the final version of the Military Commissions Act — the one the President signed — doesn't have a severability provision, although some earlier versions did. In theory, that usually means that the bill stands or falls as a whole — if one part of the bill is unconstitutional, the whole bill is void. (There are exceptions, for when the courts find Congress couldn't have intended that.)

So my colleague Steve Vladeck and I wrote the New Yorker a letter.

To the Editor: In Jeffrey Toobin's marvelous profile of Senator Arlen Specter (“Killing Habeas Corpus,” Dec. 4), the Senator reveals that he labors under a fascinating misapprehension regarding potential judicial review of the Military Commissions Act of 2006. Senator Specter states that the Act contains a severability clause, and that, therefore, excision of the controversial (and, in our view, unconstitutional) habeas provision would have no implications for the continuing force of the rest of the Act. In fact, as anyone who reads the Act will quickly discover, the statute as signed by the President contains no such provision. As a result, if the Supreme Court were to strike down any part of the statute, it would have to consider whether the rest of the Act can survive the loss. As the habeas-stripping clause was the subject of its own vote in the Senate, and the legislative history shows that the severability clause was removed during the consideration of the bill, it would be very difficult for the Court to find legislative intent supporting severability. We draw some comfort from this observation, although not from the apparent failure of one of the bill's coauthors to understand what he was voting for. A. Michael Froomkin, Professor

Stephen I. Vladeck, Associate Professor

The New Yorker just published it, in a version that keeps the essential point but edited all the cute out of it:

Toobin's profile reveals that Specter labors under a misapprehension regarding potential judicial review of the Military Commissions Act of 2006. Specter states that the Act contains a severability clause, and that, therefore, excision of the controversial habeas provision would have no implications for the rest of the Act. In fact, the statute contains no such provision, and, if the Supreme Court were to strike down any part of the statute, it would have to consider whether the rest of the Act can survive the loss. Since legislative history shows that the severability clause was removed during the consideration of the bill, it would be very difficult for the Court to find legislative intent supporting it. A. Michael Froomkin, Professor

Stephen I. Vladeck, Associate Professor

University of Miami School of Law

Coral Gables, Florida

Of course, both Steve and I have complete faith that the Supreme Court could, if it wanted, find some excuse to sever the habeas provisions of the MCA from the rest of the bill — all they'd have to do is change current severability doctrine to fit. Whether it could be done in a principled way, on the other hand…