560
Scalia, J., dissenting
"The inquiry into whether a statute is severable is essentially an inquiry into legislative intent." Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U. S. 172, 191 (1999). If Congress "would not have enacted those provisions which are within its power, independently of that which is not," then courts must strike the provisions as a piece. Alaska Airlines, Inc. v. Brock, 480 U. S. 678, 684 (1987) (internal quotation marks omitted). One determines what Congress would have done by examining what it did. Perhaps the most that can be said on the subject is contained in a passage written by Chief Justice Shaw of the Supreme Judicial Court of Massachusetts that we have often quoted:
"[I]f [a statute's provisions] are so mutually connected with and dependent on each other, as conditions, considerations or compensations for each other, as to warrant a belief that the legislature intended them as a whole, and that, if all could not be carried into effect, the legislature would not pass the residue independently, and some parts are unconstitutional, all the provisions which as thus dependent, conditional or connected, must fall with them." Warren v. Mayor and Aldermen of Charlestown, 68 Mass. 84, 99 (1854).
It is clear to me that the LSC Act's funding of welfare benefits suits and its prohibition on suits challenging or defending the validity of existing law are "conditions, considerations [and] compensations for each other" that cannot be severed. Congress through the LSC Act intended "to provide high quality legal assistance to those who would be otherwise unable to afford adequate legal counsel," 42 U. S. C. § 2996(2), but only if the program could at the same time "be kept free from the influence of or use by it of political pressures," § 2996(5). More than a dozen times in § 504(a) Congress made the decision that certain activities could not be funded at all without crippling the LSC program with political pressures. See, e. g., § 504(a)(1) (reapportionment
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