Severing Severability?

Assuming Blakely does invalidate part of the Federal Sentencing Guidelines (which right now is the consensus view despite Judge Easterbrook’s game dissent in Booker), the next hard issue is the severability question: can you sever the unconstitutional parts of the guidelines and keep the rest of the system operative and legally binding or does the whole Guidelines Manual lose its legal force? Judge Cassell in Croxford holds, and the DOJ is arguing, that we cannot sever, while many other district courts have held that we can. Notably, Judge Posner in Booker explains that this issue ultimately “is a question of legislative intent,” but then he punts the issue back to the district court.

In thinking about the severability issue, I’ve come to wonder about a few things:
(1) Which Congress’s intent matters in answering the basic severability question? Do we look to the intent of the 1984 Congress that passed the Sentencing Reform Act? To the intent of the 1987 Congress that approved the initial Guidelines? To the collective intent of all the Congresses (Congri?) from 1988 through 2004 that continued to approve/authorize the current Guidelines and amendments thereto? And what effect, if any, would there be if the current Congress passed a resolution next week saying “We intended severability” or “We intended non-severability”? Finally, how do judges who do not even believe in considering legislative intent — paging Justice Scalia — start to answer the severability question when a statute is silent on the issue?

(2) Is the lawful application of the Guidelines even in cases with no upward adjustments or upward departures arguably just another severability question which calls for considering the intent of Congress? Judge Cassell in both Croxford and Thompson goes out of his way to stress that the Guidelines can still lawfully apply in some cases (those without upward adjustments requiring judicial fact-finding), and Judge Stewart in Montgomery makes the same point. Moreover, in Thompson, Judge Cassell quickly rejects the defendant’s claim, based on concepts of equal protection, that because the federal guidelines are (according to Cassell) wholly unconstitutional in some case then they are inapplicable in all cases. But rather than having this claim sound in equal protection (which is a stretch), how about arguing severability and legislative intent. That is, could Thompson and others similarly situated assert that Congress would never have approved/accepted a sentencing scheme in which the Guidelines are completely inapplicable in some cases (i.e., those with even just one unenforceable upward adjustment), while fully binding in others (similar cases without one such adjustment)? After all, the whole purpose of the SRA was to create more uniform and consistent national sentencing law. In other words, if Judge Cassell (and DOJ) really think the applicability of the Guidelines is an all-or-nothing proposition for a particular defendant, doesn’t the same logic support an argument that the Guidelines are an all-or-nothing proposition for all defendants?

If these queries make no sense, please blame fatigue.