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Learning What is in Obamacare: The Severability Edition

Filed under: General — Aaron Worthing @ 1:56 pm

[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.]

26 Responses to “Learning What is in Obamacare: The Severability Edition”

  1. A useful discussion Mr. Worthing, thank you. About the report you quoted, I’d simply note that an unnamed Congressional aide’s hearsay opinion about what he thinks the 535ish (depending on whether you only count MA once, perhaps?) Congresscritters intended — as if they had, or even a bare majority of them in both chambers, actually had a common set of intentions — doesn’t count as “legislative history,” nor is it otherwise the sort of thing which the federal courts ought to consider. There’s probably some federal precedent which confirms that.

    (But there’s probably also some precedent which the Obama Justice Dep’t will distort in an effort to content that the federal courts ought to to just take their word for it: “Oh, yeah, definitely, we asked ex-Speaker Pelosi and Majority Leader Reid about this, and they said they’re really, really sure everybody intended everything to be severable.”)

    Beldar (34fa57)

  2. <>

    I think the quotation marks should have been applied to .

    Why shouldn’t the serverability clause apply here?

    rab (7a9e13)

  3. Correction:

    I think the quotation marks should have been applied to


    rab (7a9e13)

  4. Congress didn’t craft ObamaCare. A bunch of J and K Street lawyers did. That is why there is no severability clause in it. Not one of those lawyers never read the constitution to see what kind of bill must be crafted. Instead they went along with what the unions and other people wanted.

    Stan25 (103775)

  5. Beldar

    Actually I suspect that the reason why these people claimed it was an oversight is to engage in a little cya.

    Not that I think the courts should C congress’ A, but there you go.

    Aaron Worthing (b8e056)

  6. Aaron, posts like this one is why I like coming to ‘Patterico’. All the posts about “intentionalism” in the law are helpful to a non-lawyer like myself in grasping the meaning. I like all your posts, btw. Cheers.

    TimesDisliker (93939c)

  7. Actually no, the Apollo Alliance and other groups, crafted the stimulus and Obamacare

    narciso (9d0688)

  8. The entire argument on severability should be a non-starter – there should be no severability.
    If the Courts find a law, in part or total, unconstitutional, the entire thing should be returned to the Congress for a re-write, and a new vote; and, until that time, the act found unconstitutional would be null and void.

    AD-RtR/OS! (0ac8fd)

  9. 8. But severability is part of the genius of lobbyists and lawyers, we write 2300 pages of inter-locking crap, declare the bill to be severable, so that we ensure that it will take you dcades, if not centuries, to work each little component through the courts. Some lawyer that was low on the grade list at Hahvard is going to have a problem for not inclding the get out of court free phrase.

    Hrothgar (55d26d)

  10. Not a good sign for the current administration or the socialists who pushed this on us. Serverability issue will get this eventually before the Supreme Court.

    Cheshirecat (0cd6a2)

  11. Just another messaging problem to be overcome in the courts.

    daleyrocks (df87cd)

  12. cheshire

    even if there was no severability issue, this would go to the S.C.


    I understand where you are coming from, but imagine a bill that covers 1,000 things, and all but 1 is constitutional. so we go back to the drawing board completely, because one is problematic?

    seems inefficient to me. unless it is so important that it casts whether any of the other votes would have been cast but for this.

    Aaron Worthing (b8e056)

  13. AW – who cares about efficient? Certainly not the government.

    JD (eb5afc)

  14. The Senate bill was never intended to be “the” bill. The Democrats expected the separate House and Senate bills to go to conference and be merged in some orderly fashion. After Scott brown was elected by Massachusetts, the conference bill was subject to a successful Republican filibuster so the Democrats declared the Senate bill as the bill and the House passed it as is warts and all.

    Noah (026d7f)

  15. If there is no severability clause but a bunch of liberals claim there was, we have to go with intentionalism and damn the text. Or not, with a wall of 40,000 words explaining how intentionalism really applies but of course you don’t look at the intent and Patterico is really a huge liar. Or something.

    Patterico (3e3596)

  16. Noah has the story. This was not intended to be the final bill. There have been a number of Democrat Congressmen complaining about how this was done.

    Mike K (568408)

  17. This stupid bill, er, law, was pushed through (jammed down the the throat of the electorate) to show that Obama could get something done that Clinton couldn’t.

    I’m a bit tired of being the victim of who has the bigger cajones in a useless party that has none.

    Ag80 (e828a4)

  18. AW…
    I’m sorry, if they can’t do it right, it shouldn’t be done at all, especially after all the money they waste in concocting this crap.
    If one comma is misplaced, throw it out, and do it right.
    Close only counts in Horse-shoes, Hand-grenades, and Global Thermonuclear Warfare!

    AD-RtR/OS! (0ac8fd)

  19. Since “severability” existed in prior versions, but did NOT exist in the final, signed-into-law version, I would be amazed if the SCotUS did not see that as pure legislative intent.

    Over the last several years they have ruled on numerous cases where it was argued that Congress meant something slightly different than the plain language allowed, but when it was shown that other versions specifically left out the language to make it ACTUALLY mean that…

    Wow. I just re-read what I just typed, and it doesn’t make any sense to me, and I wrote it…

    The Departed (d027b8)

  20. Imagine my distress when I understood what ‘The Departed’ wrote.

    J Delahanty (3808dc)

  21. I recommend a good deal of alcohol to blur the memory.

    The Departed (d027b8)

  22. Which reminds me, this is why all the “tax” language had to be removed from the bill and changed to “penalty” — given that the bill originated in the Senate, they couldn’t originate any revenue-raising bills.

    Which is why they’ve got a problem on their hands now, as the fed’s power to tax is rather broad, but they cannot penalize just any old economic activity/inactivity.

    Still doesn’t explain why, if they went to the trouble to go with the editing “tax” to “penalty” they couldn’t have slapped a boilerplate severability clause in there. I think the omission was on purpose.

    meep (bde131)

  23. AW re: @12
    The problem is that laws have severability clauses because entire laws have been thrown out because one part was bad.

    You are correct that this gets to the Supreme Court in any event. However, the severability issue gets it there faster. It is in the interests of the administration and it cohorts to let this drag out in the courts for years with most of the law surviving. With severability an issue, all they need to have happen is for one lower court to toss out the entire thing and then they are scrambling.

    Cheshirecat (0cd6a2)

  24. The Departed @ #19:
    I think that post makes you eligible to be a U.S.Senator – or at least to replace Max Baucus.

    AD-RtR/OS! (e2c6d2)

  25. The omission looks like joe liebermans work. He has a large insurance industry in his state and he actually has a brain.He was very active in protecting his campaign contributers during the negotiations that the republicans were locked out of.AS for the brain comment i refer you to john conyers.

    dunce (b89258)

  26. My suspicion is that Congress deliberately left out the severability clause in order to make give an unpalatable all or nothing choice to the courts (esp. Justice Kennedy). If overturned, Congress could then point to those nasty Republican judges and give themselves the legitimacy to expand the number of justices (like swamping the House of Lords during the crises over the Reform Act and Lloyd George’s budget).

    Ed Unneland (869d28)

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