Will "Severability" Sink Obamacare?

I heard an interesting interview with the Attorney General of the state of Pennsylvania, Tom Corbett, this morning.  Corbett is among those state Attorneys General suing to overturn Obamacare. 

He had an interesting observation.  He said the legislation that was passed did not appear to have any "severability" clause. 

What are the implications?  It seems that, if the courts rule against Obamacare, the whole thing would most likely have to be thrown out.  If there had been a "severability clause" in the new law, then only the portion with which the court had a  problem would be overturned. 

If Corbett is right about this, it could turn out to be a major mistake on the part of the national Democrats.  And if the courts intervene, the absence of one little clause could sink the whole ship.

Comments

[Preston Earle]

Joe, from what I've been reading, the chances of the courts taking up and/or ruling against ObamaCare are slim-to-none, on the order of the chances of Ed Cone favorably linking to a post at Powerlineblog.com.

[Joe Guarino]

Hi, Preston. I have seen a couple of those articles, and I hope they are wrong-- but I obviously cannot claim any legal expertise. The articles I have seen tend to quote law professors, who often happen to be left-leaning. Remember that Obama himself is a former law professor.

I suppose we shall see.

[Bubba]

Here's some perspective on this aspect of "reform"

http://volokh.com/2010/03/25/lawsuits-against-the-health-care-bill/

[Jeffrey Sykes]

If no one else does it, I would assume I could challenge the Constitutionality of the government forcing me to purchase a service.

[Joe Guarino]

That is what Volokh seems to be saying, Jeff-- you need to have standing. He seems to think the Thomas More Law Center lawsuit might have legs, precisely for that reason.

[A.W.]

Actually, even without a severability clause, the courts will still only sever off part of it according to a test of their own device.

its possible that the lack of a severability clause might be read in an expressio unius sense that its all or nothing, but i doubt the supreme court will do that.

The more likely approach will be their own test, but without getting into alot of details, they seem to be very likely

i think U.S. v. Lopez has some very uncomfortable dicta, for those who support the mandate:

> We pause to consider the implications of the Government's arguments. The Government admits, under its "costs of crime" reasoning, that Congress could regulate not only all violent crime, but all activities that might lead to violent crime, regardless of how tenuously they relate to interstate commerce. See Tr. of Oral Arg. 8-9. Similarly, under the Government's "national productivity" reasoning, Congress could regulate any activity that it found was related to the economic productivity of individual citizens: family law (including marriage, divorce, and child custody), for example. Under the theories that the Government presents in support of §922(q), it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign. Thus, if we were to accept the Government's arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate.

In other words in Lopez, the government said, "sure the activity itself is not economic, but if you are shot, you don't buy as much, so that affects the economy"--and they lost. now in 2010, the liberals are saying, "sure, the activity is not economic, but if we can't force you to buy this, that will affect the economy." i don't see a whole lot of difference between the two.

[Joe Guarino]

I agree, AW. That citation you provide is certainly encouraging. Unfortunately, the court has probably not always ruled in a rigorous manner on matters related to federalism and the placement of appropriate checks on powers wielded by the national government. I hope they throw the whole thing out, even though I understand you consider that unlikely.

[A.W.]

Joe,

Actually you are misreading me slightly (probably because i wasn't really clear). I just said it would fall back to the usual rules on severability… which still might be a problem. those rules are laid out in Buckley v. Valeo, where the court said that:

> Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.

Now the blunt truth is if you take away the mandate, then literally the entire insurance industry will go bankrupt. They are counting on a certain number of Americans being driven into buying insurance when it might not be rationally necessary, in order to offset the price of the rest of the reforms. So I see in that reality a very good argument to be made that congress would not have passed this health care bill without the mandate.

So I consider it about a 75% chance that the mandate goes bye-bye, and possibly very soon. I think the court would be eager to eliminate the uncertainty on this topic, because businesses do have to plan ahead.

It’s a closer call on severability. It is a pretty extreme act to invalidate an entire law, especially given that it has already been amended once by reconciliation. On the other hand, Congress is counting on the institutional fear of opposing congressional power grabs on economic matters, with dark memories of the infamous FDR court-packing threat. But if the republicans take back congress, the supreme court might realize they have nothing to fear. And the competing haunting memory is Korematsu v. United States when the supreme court was so scared of opposing congress led them to participate in a truly horrific act. I think the turning point, by comparison was the flag salute cases, where they found the testicular fortitude to overturn their own precedent within a year and say something they knew might be unpopular. And like I said, I don’t think they really face a danger like the FDR court-packing scheme. I think most Americans would cheer to see the supreme court strike this turkey down.

I know that has nothing to do with the legal merits, but look, Scalia, Thomas, Roberts and Alito can be counted on to vote against it on principle. That leaves kennedy as the most likely swing vote, especially on the severability issue. And all you have to do is read Kennedy v. La. (no death penalty for child rapists), especially Alito’s stinging dissent, to realize that kennedy only plays a judge; he is really a legislator in a robe, who just sometimes legislates conservatively.

(Of course the day after the supreme court ruled that you couldn’t execute child rapists, the supreme court ruled in favor of the right to bear arms. As one friend joked, “and thus kennedy v. La is now moot.”)

I would also add that we might get one or two liberals against the mandate, because of a little precedent called… Roe v. Wade. If Roe means anything, it is the idea that you have a right to control your medical destiny. The right to an abortion is just an extreme extension of that right. If the government can fine you $1K for not buying insurance, why can’t it impose a $16,000 tax on abortions?

What modern liberals don’t get is that while it is possible to be incredibly hypocritical politically, the justices are not usually willing to be hypocrites judicially. So liberals can support Title IX using the spending power to promote the inclusion of women, while opposing the use of spending power to promote the inclusion of military recruiters on campus and politically that works, but when the issue gets to the supreme court, they go down in flames. The same will happen here. Kennedy may not be an originalist, but he has principles he is guided by, and it is too much of a contradiction to say that you have a right to control your body enough to be gay, but not enough to choose your own insurance, or even to refuse to buy it. Kennedy will not allow for that kind of contradiction.

[A.W.]

dang, i still wasn't as clear as i would like.

i would give it 75% chance of the mandate being struck down.

then if it is, about a 50% chance of the rest of the bill going down on lack of severability

[Joe Guarino]

AW, I really appreciate your comments. I hope you are right with your percentages-- particularly with the individual mandate-- because as you suggest, without that, the whole thing doesn't work as it was structured. If the rest of the bill did not go down, then the question would be how Congress would react to the mandate being thrown out.

[FVC]

If members of this board would like to read a very well written petition challenging the constitutionality of the health care law, I highly recommend you look at the private suit for declaratory judgment and injunctive relief that was filed in Mississippi late last week. The petitioners' arguments are concise, include citations and the petition is an easy read. The petitioners even made constitutional arguments that I had not seen raised before. Below is a link to a blog that summarizes the suit. The blog contains a link to download the petition itself. I think it is worth reading the actual petition although the blog does a pretty good idea summarizing it.

http://biggovernment.com/kdlee/2010/04/02/liberty-in-action-first-private-lawsuit-challenging-obamacare-filed-in-mississippi/

[Joe Guarino]

Thanks, FVC. That is great stuff. Let's hope it prevails.