[Guest post by Aaron Worthing; if you have tips, please send them here.]
So the Virginia and Florida Obamacare cases will have verdicts in about a month and the New York Times has finally noticed a small “oversight” that might come into play if the mandate is declared unconstitutional:
Virginia’s attorney general, Kenneth T. Cuccinelli II, a Republican who filed the Richmond lawsuit, argues that if Judge Hudson rejects the insurance requirement he should instantly invalidate the entire act on a nationwide basis.
Mr. Cuccinelli and the plaintiffs in the Florida case, who include attorneys general or governors from 20 states, have emphasized that Congressional bill writers did not include a “severability clause” that would explicitly protect other parts of the sprawling law if certain provisions were struck down.
An earlier version of the legislation, which passed the House last November, included severability language. But that clause did not make it into the Senate version, which ultimately became law. A Democratic aide who helped write the bill characterized the omission as an oversight.
Without such language, the Supreme Court, through its prior rulings, essentially requires judges to try to determine whether Congress would have enacted the rest of a law without the unconstitutional provisions.
The Justice Department, which represents the Obama administration, acknowledges that several of the law’s central provisions, like the requirement that insurers cover those with pre-existing conditions, cannot work unless both the healthy and the unhealthy are mandated to have insurance. Otherwise, consumers could simply buy coverage when they needed treatment, causing the insurance market to “implode,” the federal government asserts.
The administration argues that other key provisions do not depend on the insurance mandate. Those provisions include establishing health insurance exchanges, subsidizing premiums through tax credits and expanding Medicaid eligibility, all scheduled for 2014.
In other words, Congress “forgot” to put in language that said that if part of this law was struck down, the remainder of the law would remain in place. Now that doesn’t mean that the courts will automatically strike down all of it, if any one part is struck down. But they will ask whether the whole bill would have been passed without that part. In Buckley v. Valeo, the rule was stated as follows:
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.
So it’s a two part test: does the rest of the law even work without the invalid portion? And if it does, is it still the case it is evident that but for this provision, Congress would not have passed this law? And that is where they could get into trouble. Indeed, the administration concedes that much, if not all, of the law would not have been passed without the mandate, but also argues the courts should pick and choose which parts would have been passed but for the mandate, an approach that seems dubious at best.
Of course as suggested by my use of scare quotes, one might wonder whether the omission was truly unintentional. Ann Althouse certainly doesn’t think so, writing:
Well, that’s one hell of an oversight! I can certainly see why someone who wants the bill to survive would attempt to portray this as an oversight, but I don’t think that’s believable. The need for a severability clause is well-known and obvious.
And of course there is a policy reason for not wanting a severability clause, and therefore believing its exclusion was intentional. As the administration admits above, without the mandate, many provisions of this law would drive the insurance industry out of business. But if the severability clause was inserted, it might very well mean that these industry-destroying provisions would remain in place. So by leaving out the severability clause, they might have in fact saved the insurance industry. Certainly the courts should not supply the language they “accidentally” left out. Nor should they pick and choose which provisions they think might have been passed if they had left the mandate out in the first place. It is clear that much of this law would not have been passed but for the mandate and that should be enough to invalidate this entire monstrosity of a law.
But let’s take them seriously about accidentally leaving this provision out just for a moment. If that is the case, then if the lack of a severability clause becomes critical to the outcome of the case, it would represent the second time the courts have essentially penalized Congress for its lack of care in passing this law. As I said about a month ago:
[W]hat leaps out at me is that his entire analysis depends on Congress paying a lot more attention to the language of the law than they actually did. From Nancy Pelosi declaring that we had to pass the law to see what was in it, to Max Baucus claiming paradoxically that he wrote the healthcare law, but didn’t actually read it, not to mention that they manage to pass laws called “The ______ Act of ____,” it’s really hard to pretend that Congress carefully crafted this law.
Now, it is possible that Vinson was just applying precedent as he saw fit, and he didn’t want to send a message. But whether he intended to or not, anyone who reads the opinion sees that the courts following this approach are going to act as though Congress carefully crafted and scrutinized every word. So if they don’t actually devote this much attention to a statute’s language, then the law of unintended consequences will bite them right in the kiester. Whether Vinson intended to send that message, it is the message being sent.
Of course the flaw in the theory that he is trying to send a message is that Judge Vinson would have to believe that Congress would actually read what he wrote—which is itself a dubious proposition.
And of course this also fits in with my theory that they are forcing Congress to take a second (or first) look, in a Bickelian sense of the word.
[Posted and authored by Aaron Worthing.]