The SG's artful dodging on severability

Though the Solicitor General's arguments about the federal guidelines' severability are much more in touch with reality than some of its arguments about Blakely's applicability to the federal guidelines, what stands out most in the SG's treatment of severability is the dodging of some of the toughest issues. I suppose I should be thankful that the SG did not avoid the severability question altogether, as has the US Sentencing Commission, but the Supreme Court surely would benefit from a fuller analysis of all of the tough and critical severability questions it faces in Booker and Fanfan.

First, as noted before here, the SG brief completely ducks the question of whether, if Blakely applies to the federal guidelines, the guidelines can and should still apply in federal sentencing cases that do not raise any "Blakely factors." Recall that at least two federal judges have held that, if the guidelines are wholly inapplicable in some cases, then they are wholly inapplicable in all federal cases. Meanwhile, as detailed here, at least one Commissioner has opined that only one in five federal cases have Blakely issues. Whatever the true number, "lower courts will be in desparate need of guidance" (SG Brief at 43) about how to handle "Blakely-free" cases if SCOTUS applies Blakely to the federal guidelines.

Second, though the SG highlights that severability is an issue of statutory construction and legislative intent, the brief does not dig into all the challenging implications of these realities. For example, as I suggested here, perhaps the rule of lenity has some applicability in this setting, but the SG does not mention the doctrine at all.

In addition, the SG does not address which Congress's intent matters in assessing severability. (I previously noted here the intrigue of this question given that the 1984 Congress passed the Sentencing Reform Act (SRA), but the 1987 Congress approved the initial federal guidelines, while the 2003 Congress directly amended the guidelines in the PROTECT Act, and Congresses (Congri?) from 1988 through 2004 continued to approve/authorize the current guidelines and amendments thereto). The "which Congress" question seems consequential since, as noted here, the Congress that passed the SRA was primarily focused on remedying lawlessness, while more recent Congresses have shown a particular concern about perceived leniency.

Finally, since the SG contends that the SRA is severable by arguing that the provisions of 18 U.S.C. 3553(a) would still govern federal sentencing even if Blakely is applicable to the federal guidelines, see SG Brief at 67, I suppose it is understandable that the SG does not address the continued validity of sentencing appeals or supervised release or the abolition of parole or other fundamental features of the SRA. Nevertheless, as noted here, the broadest claim of non-severability raises a host of critical, practical issues not even acknowledged by the SG.