Breyer's New Judicial Review
Our normal rule . . . is that the "unconstitutionality of a part of an Act does not necessarily defeat or affect the validity of its remaining provisions. Unless it is evident that the legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law." (citation ommitted).The Court's power of judicial review, therefore, is limited to severing statutes or portions of statutes that are in violation of the constitution, or in the case where it is evident that Congress would not have enacted the statute, throwing the whole thing out. Breyer seems to come up with a system where he can have his cake and eat it too.
Since this isn't a finding of facial invalidity (I don't think), Breyer is basically arguing that in light of the first majority opinion's decision to sever applications of the statute that violate the Sixth Amendment, the Court is going to rewrite the statute to square with Congress' original goal with respect to the guidelines. I haven't yet had time to go through Breyer's support for his handiwork (guess what . . . I wrote this word before reading Scalia's dissent where he refers to the Breyer opinion by the same word) where he cites 3 cases I haven't heard of and a law review article, but I have a hard time understanding where in Article III or in any statutory grant the court has the power to "fix" statutes in this way if they, after being partially severed, do not completely square with Congress' original intent regarding the statute. Such a grant would, it seems, not even be a constitutional delegation as it would go far beyond a line item veto.
Instead, what Breyer seems to be proposing is that Congress and the President get to enact and sign a PURPOSE into law, which the court, either through enforcing the provisions as the statute as stated or by changing them to accomplish the purpose, will make sure to uphold. Since the "uniformity" purpose of the Guidelines cited so often by Breyer is probably impossible under the constitutional part of the Sentencing Guidelines, Breyer thinks it is okay to rewrite the statute in order to salvage the purpose.
Thus, (Breyer thinks) although the part of the Judiciary Act of 1789 that impermissibly expanded the original jurisdiction of the Constitution to include writs of mandamus was severed off the statute, since Congress meant for Marbury to be able to sue Madison in the Supreme Court, Marshall could have just read the Judiciary Act to, instead of allowing original jurisdiction in the Supreme Court, somehow allow waiver of lower court adjudication to open up a fast track to the Supreme Court. Sounds ridiculous to me . . . pragmatism at a whole new level.