In a piece centered on Federalism and the Supreme Court’s ruling that Congress cannot require individual States to ban sports gambling, there’s this bit at the end of the article that interests my grasshopper mind.
Supreme Court Justice Clarence Thomas, in concurring, protested the Court’s analysis of Congressional intent.
The Court also determined that PASPA’s [Professional and Amateur Sports Protection Act] prohibition on sports gambling advertising can’t be severed from the law. But as Justice Clarence Thomas noted in his pithy concurrence, the Court’s severability analysis requires courts to make “a nebulous inquiry into hypothetical congressional intent.”
On this, I disagree with Justice Thomas. In Connecticut National Bank v Germain the Supremes held
…that courts must presume that a legislature says in a statute what it means and means in a statute what it says there.
If Congress had intended sports gambling advertising to be severable, it would have said so in PASPA. Congress did not say so; arguing the possibility of severability would be Thomas’ own inquiry into congressional intent.