Cite as: 531 U. S. 533 (2001)
Scalia, J., dissenting
sidy upheld in Rust v. Sullivan, supra. There is no legitimate basis for declaring § 504(a)(16) facially unconstitutional.
III
Even were I to accept the Court's First Amendment analysis, I could not join its decision to conclude this litigation without reaching the issue of severability. That issue, although decided by the Second Circuit, was not included within the question on which certiorari was granted, and, as the Court points out, was not briefed or argued here. I nonetheless think it an abuse of discretion to ignore it.
The Court has said that "[w]e may consider questions outside the scope of the limited order [granting certiorari] when resolution of those questions is necessary for the proper disposition of the case." Piper Aircraft Co. v. Reyno, 454 U. S. 235, 246-247, n. 12 (1981). I think it necessary to a "proper disposition" here because the statute concocted by the Court of Appeals bears little resemblance to what Congress enacted, funding without restriction welfare-benefits litigation that Congress funded only under the limitations of § 504(a)(16). Although no party briefed severability in Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U. S. 727 (1996), the Justices finding partial unconstitutionality considered it necessary to address the issue. Id., at 767 (plurality opinion) ("[W]e must ask whether § 10(a) is severable"); accord, New York v. United States, 505 U. S. 144, 186 (1992). I think we have that same obligation here. Moreover, by exercising our "discretion" to leave the severability question open, we fail to resolve the basic, real-world dispute at issue: whether LSC attorneys may represent welfare claimants who challenge the applicable welfare laws. Indeed, we leave the LSC program subject to even a greater uncertainty than the one we purport to have eliminated, since other circuits may conclude (as I do) that if the limitation upon welfare representation is unconstitutional, LSC attorneys cannot engage in welfare litigation at all.
559
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