Concurrent Resolution by Congress - Severability, and why 2 cases were necessary for SG to take to SCt

The Concurrent Resolution passed by Congress, requesting that the Supreme Court pass upon the constitutionality of the federal sentencing guidelines, includes the following language:

Whereas the statutory maximum penalty is the maximum penalty provided by the statute defining the offense of conviction, including any applicable statutory enhancements, and not the upper end of the guideline sentencing range promulgated by the Sentencing Commission and determined to be applicable to a particular defendant;

Whereas both Congress and the Sentencing Commission intended the Federal Sentencing Guidelines to be applied as a cohesive and integrated whole, and not in a piecemeal fashion;

As pointed out in SCOTUSBlog, the Resolution "express[es] the current Congress's view on the severability question raised in the SG's petitions." It goes on to explain why "as a strictly legal matter" the Resolution should not have no effect on the Court's ruling on the issue of the guidelines severability. "That question depends upon a special sort of calculation of what the enacting Congress 'intended' in the event part of the statute were rendered inoperative -- sometimes described as a question about what the enacting Congress would have done had it known of the Court's eventual constitutional ruling. This is the way the Court has put the point for many decades now: 'Unless it is evident that the Legislature would not have enacted those provisions which are within its power [i.e., are constitutional], independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.' See, e.g., Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987)." SCOTUSBlog also has an interesting post here on why the certified questions from the Second Circuit in Penaranda and Rojas were not a good vehicle for the Court to address the issues presented by the SG. It also covers why two cases -Booker and Fanfan- were necessary, and how if yesterday's 9th Circuit decision in Ameline had come down sooner, that would have been the case for the SG to take to the Court instead.