Your Honors,
I thank the Court again for its questions and for its patience with my delayed response. With the Court’s indulgence, I will address the two sets of questions in reverse order.
I. Severability
I address these questions first because I believe the core issue that underlies them is of transcendent importance. In essence, the issue is: if the Court finds that part of a statute passed by the Assembly (but not the whole thing) violates the Charter, what can or must it do? Must it invalidate the statue in its entirety, or can the Court continue to enforce the remaining, constitutional portions of the statute?
It is hard to overstate the salience of these questions. Indeed, they cut to the heart of this Court’s role in our government. The answers will govern the Court’s approach to interpreting constitutional law, which is perhaps the weightiest function that the Charter assigns to it. And they will regulate the extent to which this Court invalidates democratically enacted legislation, an act of grave moment in a democratic society. Most importantly, these issues are likely to arise frequently in future constitutional challenges. As a leading scholar has pointed out, “[m]any laws are unconstitutional, but few are entirely so. As a result, partial unconstitutionality is pervasive.” Walsh, Partial Unconstitutionality, 85 N.Y.U. L. Rev. 738, 739 (2010). Thus, the approach the Court adopts to situations of partial unconstitutionality here is likely to have implications stretching far beyond even this highly significant case.
At the outset, it is important to distinguish the two ways in which a statute can be partially unconstitutional. See Metzger, Facial Challenges and Federalism, 105 Colum. L. Rev. 873, 885 & n.52 (2005) (distinguishing “text severability” from “application severability”); Walsh, 85 N.Y.U. L. Rev. at 739 (elaborating on this distinction). First, and most obviously, one or more of a statute’s provisions—articles, sections, or sub-sections—could be unconstitutional, while the remaining provisions are constitutional. In such a case, the question facing the Court is whether the remainder of the statute can be enforced if its unconstitutional provisions are excised. Second, and perhaps more subtly, a single statutory provision could itself have both constitutional and unconstitutional applications. See Vermuele, Saving Constructions, 85 Geo. L.J. 1945, 1950 n.26 (1997) (“[S]everability problems arise not only with respect to different sections, clauses or provisions of a statute, but also with respect to applications of a particular statutory provision when some (but not all) of those applications are unconstitutional.”). In those cases, the question facing the Court is whether that provision’s constitutional applications can still be enforced if its unconstitutional applications are not.
Faced with either of these situations, judges should generally “enforce a statute except in the specific cases where its application is unconstitutional.” Baude, Severability First Principles, 109 Va. L. Rev. 1, 4 (2023). Why? Because a court’s most fundamental duty is to say what the law is. Cf. Charter VII.(5) (“The High Court may clarify and interpret provisions of law when presented with a Legal Question about them.” (emphasis added)). In our system of government, the law comprises the Charter and all legislation enacted by the Assembly. Of course, the Charter “hold[s] supremacy over all other laws,” Charter I.(3), so it displaces ordinary legislation that contradicts it. But because “laws generally remain valid and enforceable in the absence of such a constitutional problem,” the Charter displaces conflicting ordinary law “to the extent, but only to the extent, that they are at odds.” Baude, 109 Va. L. Rev. at 8.
This bedrock interpretive principle is codified in our law. The Charter empowers the High Court to declare any “official act of government” void “in whole or in part” if that act “violates the terms of this Charter or any other constitutional law.” Charter VII.(4) (emphasis added). And the Charter requires the Court to “reconcile contradictions within the Charter, constitutional laws, general laws, and Executive Orders, maintaining the least amount of disruption to the intended purposes of the contradictory parts.” Id. VII.(5) (emphasis added). In other words, this Court is expressly instructed to exercise its power of judicial review in such a way that it invalidates the smallest amount of the Assembly’s handiwork as possible.
To be sure, there are limits to this principle. Most relevant here, whatever is left after the Court demarks the unconstitutional portion of the statute—i.e., the remaining constitutional provisions and applications—must, taken together, actually be operative as a law; otherwise, the entire statute should be invalidated. Put differently, “[i]f one provision is logically or linguistically conditional on another provision, and the latter cannot be given effect, then the former cannot either.” Baude, 109 Va. L. Rev. at 24. This explains the Court’s opinion in Justiciability of Legislator Application Appeals, 1808.HQ. As the Petitioner’s brief explains, once the Court concluded that the statutory provision empowering the Legislator Committee to reject legislator applications was unconstitutional, “Justice Sandaoguo could have struck out only those parts, but that would have been much more disruptive, as it would have left a dysfunctional committee in place which had no right to reject an applicant.” I couldn’t have put it better myself. Without the power to reject applicants, the entire regulatory structure created by the Legislator Act was logically incoherent and non-functional, so the Court was correct to invalidate it in its entirety. But in no way does Justiciability of Legislator Application Appeals require complete invalidation as the exclusive remedy in every case of partial unconstitutionality.
So after that long windup, here’s a short delivery—even if the Court finds that application of the Resolution to a particular subset of criminal prosecutions would be unconstitutionally ex post facto, it need not declare the entire Resolution null and void. For one thing, this is a case of allegedly unconstitutional applications, not unconstitutional provisions. As discussed above, only the criminal applications of Resolution sections 1.3 and 1.4 could conceivably violate the Charter; their civil applications are unquestionably constitutional. Thus, there would be no need for the Court to excise those provisions entirely from the Resolution and see what’s left, as petitioner’s section-by-section analysis suggests. Instead, the Court should ask: could the remaining constitutional applications of the Resolution operate on their own as a fully operative law if the Court were to hold that sections 1.3 and 1.4 cannot not be applied in criminal cases? The answer to that question is plainly yes. There is no logical or functional reason why, for example, the CRS would be unable to effectively apply the Resolution in evaluating a citizenship application if the Resolution could not be applied in criminal prosecutions. Thus, the least disruptive path that reconciles any contradiction between the Charter and Resolution would be to simply declare that the Resolution cannot constitutionally be applied to criminal cases and leave its remaining applications in force.
II. Definition of Ex Post Facto Legislation
Having detained the Court for so long already, I will endeavor to keep my discussion of these questions as short as possible. An ex post facto law is one that makes conduct criminal that was innocent at the time it was committed or that aggravates the severity of or punishment for criminal conduct beyond that which was prescribed at the time it was committed. Quite simply, the Charter’s prohibition on being tried ex post facto does not prohibit prosecutions for conduct that was criminal at the time in which an individual engaged in that conduct. As noted in my earlier brief, the Resolution does not authorize prosecutions for those involved in the 2016 coup, nor does it declare their actions to be criminal; it merely removes the Amnesty as a potential defense to prosecutions for any coup-related conduct that was criminal at the time it was committed. Thus, it does not authorize ex post facto trials and is fully consistent with the Charter.
The primary authority on which petitioner relies—Lynce—expressly supports this well-established definition of ex post facto legislation. In that case, the defendant, who had been found guilty in 1986, claimed the benefit of a sentence reduction pursuant to a 1987 statute designed to reduce prison overcrowding. The Florida legislature repealed that statute in 1992 and attempted to retroactively revoke all sentence reduction credits that had been issued under it. When the defendant challenged the 1992 statute as an ex post facto law, the government responded that he should not be entitled to the benefits of the 1987 statute because it was enacted after the date of his offense. The U.S. Supreme Court disagreed, but only in part. At the time of the offense, a very similar statute was in place, which had been passed in 1983. As the Court explained, both “statute[s] provided for reductions in a prisoner’s sentence when the population of the prison system exceeded a certain percentage of lawful capacity,” 98% under the 1983 statute, and 97.5% under the 1987 statute. Lynce v. Mathis, 519 U.S. 433, 448-49 (1997). Thus, the Court reasoned, “[t]he changes in the series of statutes authorizing the award of overcrowding [sentence reductions] do not affect [the defendant]’s core ex post facto claim,” as he “could have accumulated [reductions] under the [1983] provision in much the same manner as he did under the [1987] statute.” Id. at 449. But the Court went on:
We recognize, however, that although the differences in the statutes did not affect petitioner’s central entitlement to [a sentence reduction], they may have affected the precise amount of [reduction credits] he received. Between 1988 and 1992, the [reduction] credits were authorized when the prison reached 97.5% capacity rather than 98% capacity as under the [1983] statute. If the prison population did not exceed 98% of capacity between 1988 and 1992, and if petitioner received [reduction credits] during those years, there is force to the argument that the cancellation of that portion of [his sentence reduction] did not violate the Ex Post Facto Clause. Id. at 448-49.
In other words, the ex post facto clause guaranteed the defendant the benefits of the sentencing laws that were in place at the time he committed the crime, not any additional benefits that were enacted afterwards.
Neither Weaver nor Stonger, to which the Petitioner also points this Court, are to the contrary. Both involved the government attempting to deprive a criminal defendant of a benefit that existed at the time of the underlying criminal conduct. See Weaver v. Graham, 450 U.S. 24, 26 (1981) (holding a statute was an unconstitutional ex post facto law when it deprived a prisoner of sentence reduction credits that they had already been awarded under the “statute in place on both the date of the[ir] offense and the date of sentencing.”); Stogner v. California, 539 U.S. 607, 610 (2003) (same where a statute authorized prosecutions when the statute of limitations in place “at the time the crimes were allegedly committed” had expired). And the relatively limited discussion of the meaning of ex post facto legislation in our regional legislative history is of a part. See, e.g., Statement of Legislator Sopo (Apr. 1, 2015) (“Citizens can still be tried for a crime based on the law as it was at the time under this bill.”).
In sum, the Court should hold that the Resolution to Restore Regional Accountability does not authorize ex post facto trial and is thus consistent with the Charter. But even if the Court finds that the criminal applications of the Resolution are unconstitutional, it should limit its holding accordingly and allow the Resolution’s civil applications to remain operative.