§ 9.70    Avoiding Damage to the Statute Book

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You can affect other laws even when you don't mean to do so. Once a draft becomes a law, it becomes part of the context against which all other laws are interpreted. (See generally Chapter Three, "Considering the Courts: Statutory Interpretation.")

If you aren't disciplined and responsible, you can cause damage to that context, and that damage can cause problems for you, for other drafters, and ultimately for the system of federal laws as a whole.

When the courts interpret one law, they consider how Congress has drafted other laws. The courts take note of differences and generally assume that differences are meant to have significance. When Congress sends mixed signals over time, principles that were settled can become unsettled.

Suppose your client wants the provisions of the bill to be severable. Should you include a severability clause? (See discussion in § 7.63.) You plainly don't need one; the courts will presume the provisions are severable if your draft says nothing. But perhaps the client, "out of an abundance of caution," is tempted to include one anyway. The client might reason that including one is "harmless," and could possibly help.

The problem is that including a severability clause when one is plainly not needed is not harmless. It throws into question all the other laws that do not have a severability clause. If enough drafters include "harmless" severability language enough times, the courts might abandon the presumption of severability. After all, Congress does not mumble (§ 3.83), and Congress uses each word for a reason (§ 3.34). If the courts were to abandon the presumption, the severability of every law on the books would be thrown into doubt, and every future law would need to specify whether it is severable or risk being incomplete.

A provision that seems harmless almost certainly causes harm--not immediate harm, but harm nonetheless. When an antibiotic is used too often, it becomes less effective; when an aerosol is used too often, the ozone layer is damaged; when a boy cries "wolf" too many times, he loses credibility; and when Congress uses a severability clause when one isn't needed, Congress erodes the presumption that one isn't needed.

In short, there is no such thing as a “harmless” provision. Every provision has some effect on the statute book—ordinarily on the immediate act of which it is a part, occasionally on the background against which courts interpret statutes. In deciding whether to include the provision in your draft, the issue is not whether the provision is harmless but whether it is helpful, and most “harmless” provisions fail that test. If a provision does not affirmatively add value, it should not be used.

Avoiding damage to the statute book is about more than severability clauses, of course. It is about understanding the principle that your draft has not only immediate, direct effects, but also long-term, systemic effects. Many clients readily grasp this principle, and find it sensible, once you bring it to their attention. And when you internalize this principle yourself, congratulations—you are well on your way to being an effective drafter.